IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 3889 of 2013

Decided On: 14.06.2016

Appellants: A.M. Amin Uddin

Vs.
Respondent: Bangladesh bar council and Ors.

Hon'ble Judges:
M. Moazzam Husain and Md. Badruzzaman, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md. Riaz Uddin Khan and Sakib Rezwan Kabir, Advocates

Subject: Civil Procedure

Catch Words

Mentioned IN

Acts/Rules/Orders:
Indian bar Councils Act, 1926 - Section 10

JUDGMENT
M. Moazzam Husain, J.

1. This Rule nisi was issued calling in question the initiation of the proceedings in Complaint
case No. 12 of 2013 arising out of Complaint File No. 8 of 2011 now pending in Tribunal No. 1
Bangladesh bar council.

2. Simple fact of the case is that one Md. Abdul Baton, Senior Assistant Secretary, Election
Commission, forwarded a complaint-petition dated 27.3.2011 to the Secretary, Bangladesh bar
council (BBC) alleging, inter alia, that the Election Commission (EC), on the even of 2011-
Paurashabha-Election, issued Circular-6 dated 09.12.2010, creating bar in its clause No. 3
saying, inter alia that-the Mayors of Purashabha as holders of full-lime office, hold office of
profit. As holders of office of profit, they would have to contest the ensuing Paurashabha
election by resignation, as is required by the Local Government (Paurashabha) Act, 2009.' The
Mayors of Thakurgaon and Tangail Paurashava challenged the legality of clause 3 of the Circular
in a writ petition (Writ Petition No. 9702 of 2010) before a Division Bench the High Court
Division. Hon'ble Court having heard the learned Advocate (present petitioner) by an order
dated 12.12.2010 issued rule along with an interim order staying operation of the impugned
clause of the Circular so far as the same was relatable to the petitioners of the said writ
petition. Present petitioner as lawyer of the two Mayors issued a certificate later in the day in
his letterhead to the effect, amongst others, that-he moved a writ petition before a Division
Bench of the High Court Division on behalf of two Mayors challenging clause-3 of Circular-6
issued by the EC on 12.4.2010 and the Hon'ble Court upon hearing was pleased to issue Rule
and was further pleased to stay operation of the impugned clause of Circular-6 (without
mentioning that the stay was applicable to the two petitioners only). In view the certificate
issued by the learned Advocate the EC had to issue revised circular allowing Mayors of all the
Paurashabha to contest the election without resigning their offices. Accordingly they seized the
opportunity and contested the election maintaining their offices. Later it was revealed from a
certified copy of the order that the stay-order was not applicable to all the Paurashabha-
Mayors of Bangladesh which means persons otherwise disqualified to contest the election did it
in violation of law. Everything could happen on account of the certificate issued by the learned
Advocate suppressing the material fact. Such an act of suppression on the part of an Advocate
is tantamount to professional misconduct. In the circumstances, the EC called upon the BBC to
take appropriate action against the concerned Advocate and inform the former as to what
action was taken against him. The complaint made in Bangla is quoted verbatim below:

3. The complaint gave rise to Complaint File No. 08 of 2011 in the BBC. By an order dated
05.6.2011 passed in the complaint file the Secretary, BBC, addressed a notice (tagged with a
copy of the complaint-petition) requesting the learned Advocate to submit his reply to the
allegation (within a certain date) in order to place before the Executive Committee for its
satisfaction as to whether there was any prima facie case against him justifying reference to the
Tribunal for disposal. It is worth mention that a copy of the notice was also forwarded to the
Senior Assistant Secretary of EC under whose signature the complaint-petition was issued.

4. Having received the notice teamed Advocate, as opposite party of the Complaint file
submitted his reply on 20.6.2011 clarifying his position which, a bit paraphrased, is that he as an
Advocate received brief from two Paurashabha Mayors (one of Thakurgaon and another of
Tangail) to challenge the legality of clause-3 of Circular No. 6 issued by the EC on the eve of the
2011-Paurashabha-Eleelion under its office Memo dated 09.12.2010 whereby all the
Paurashabha Mayors were debarred from seeking the upcoming election without resigning
their respective offices for reason as mentioned hereinabove. He, accordingly, moved the
above mentioned writ petition before a Division Bench of the High Court Division. Hon'ble Court
upon hearing was pleased to issue Rule with an order staying operation of impugned clause-3
of Circular No. 6. The present petitioner as Advocate accordingly issued a certificate in his
letterhead to that effect upon a request from his clients. Subsequently the petitioner came to
know that the order of stay was issued so far as the same related to the two Mayors (who
brought the writ petition) only. He immediately met the Hon'ble Presiding Judge of the rule-
issuing Bench and expressed his anxiety about issuance of certificate on the basis of open-
court-pronouncement. Hon'ble Judge was pleased to make it clear that the order pronounced
in open court was modified later at the time it was signed and such minor modification or slight
variation especially in interim order, without changing the basic nature of the same, is the
privilege of the Judges.

5. As soon as the learned Advocate received aforesaid notice issued in connection with the
Complaint File No. 8 of 2012 he rushed to the Hon'ble Judge once again. His Lordship was kind
enough to share the concern and allowed the learned Advocate to refer his Lordship's words in
aid of his defense, should necessity arise. On the 4th day from issuance of the aforesaid Rule
and issuance of the disputed certificate operation of impugned clause-3 of Circular No. 6 or the
EC was wholesale stayed by a different Bench of the High Court Division without limiting the
application of the same to the petitioner of the said writ petition (W.P. No. 9865 of 2010). The
disputed certificate was issued bona fide on the basis of open-court-pronouncement which
does not constitute professional 'misconduct'. More so, only three days after the issuance of
the disputed certificate operation of the same clause of the EC-Circular was stayed as a whole
and notice thereof was duly served upon the EC long before election, therefore, the complaint
is liable to be dismissed for ends of justice. The full text of the reply (in Bangla) submitted by
the petitioner is reproduced below:
6. The next order dated 12.10.2011 (signed on 24.12.2011) reveals that the Executive
Committee of the bar council, having received the reply, amongst other things, read through
the reply submitted by the petitioner and took notice of the factum of subsequent modification
of the order by the Hon'ble Judges and found it expedient to fix a date for hearing and
accordingly fixed a date (illegible) for the purpose and directed to issue notices to the parties.
The aforesaid order dated 12.10.2011 may aptly be quoted:

"In reply the OP Advocate stated that he filed writ petition No. 9702 of 2010 for Mayor
Candidates of Thakurgaon and Tangail Paurashabha before the Nigh Court Division of the
Supreme Court and the Hon'ble Court constituted of Justice Md. Abdul Wahhab Miuh and
Justice Md, Khasritzzaman issued rule and stayed operation of clause-3 of Circular No. 6 dated
9.12.2010. Accordingly the OP Advocate issued Advocate certificate to that effect but
subsequently learned Judges of the High Court rectified the order passed in open court.
Therefore the OP Advocate claims that the issuance of Advocate certificate in obedience of the
order pronounced in open court does not come within the preview of professional misconduct.
The Executive Committee after close scrutiny of the allegations and the reply thereof resolved
to issue notice upon the parties fixing to 01(sic) for hearing. The record is submitted for favour
of kind perusal and order."

(Underlines are mine).

7. The order speaks more clearly that the Executive Committee took notice of the factum of
subsequent modification of the interim order made by the Hon'ble Judges and in its meeting
felt the necessity to hear both the parties on the issue and accordingly fixed a date for hearing.
The order is seen to have been signed by the Secretary of the BBC and countersigned by the
Chairman, Executive Committee. Rut no such hearing did ever take place nor was any reason
assigned therefor. By the next order dated 09.4.2012 the case was straightaway referred to
Tribunal No. 1 for disposal pursuant to a resolution dated 10.3.2012 in the followings terms:

"The Bangladesh bar council considered the case with reference to the recommendation of
the Executive Committee and having found prima facie case was pleased to refer this complaint
to Tribunal No. 1 of the bar council for disposal vide Resolution No. 6(25) dated 10.3.2012."
8. Many things remained unspoken, many questions unanswered. However, the Tribunal
received the case on 11.3.2013; registered the same as Complaint Case No. 12 of 2013 and
issued notices to the parties and the Attorney General fixing 13.5.2013 for appearance as well
as filing written objection by the Advocate complained against.

9. This Rule was issued on 15.4.2013 and made ready for hearing after service of notices quite
some lime ago. Records suggest that none of the respondents made their appearances in this
case. Naturally, no affidavit-in-opposition was filed from any quarters controverting or refuting
the statements made in the reply submitted by the petitioner.

10. Mr. Riaz Uddin Khan, learned Advocate, appearing for the Advocate-petitioner made it clear
at the outset that there is an appellate forum created under art, 36 of the Legal Practitioners
Order which is open to appeals against orders passed by the Tribunal under art, 31 of the
Order. But here in this case what is challenged is initiation of the proceedings which is born out
of a reference made by the Liar council not by an order passed by the Tribunal. Question of
alternative remedy, therefore, does not arise.

Without prejudice to the submission already made, Mr. Khan goes further to say that even an
appeal against an order passed by the Tribunal under art, 34, save as one preferred against the
final order awarding punishment, can not be said to provide equally efficacious remedy
especially as against an indicted Advocate. He explained his position saying that art, 36 provides
scope for the aggrieved party to file appeal before the High Court Division against 'an order of
the Tribunal passed under art 34', But art, 34, by a close reading suggests that there is virtually
no scope for the Tribunal to pass any order which, if set aside in appeal, may totally-exonerate
an Advocate from the vice of an otherwise misconceived, untenable, false or vexatious
prosecution except the final order passed after conclusion of trial. He contended that art, 34
comprises of nine sub-articles out of which sub-articles (4) to (9) deal with matters that flow
from conclusion of trial, i.e. dismissal of the case or (if otherwise decided) punishment of the
indicted Advocate: cost to be imposed in vexatious cases; power of review of the order passed
after trial and entering record of punishment, if any, awarded to the indicted Advocate. The
three other sub-articles occurring before sub-article (4) are all about legislative mandate for the
Tribunal to follow the procedure in enquiry; fixing dates for hearing; causing notices to be
served upon the concerned Advocate and the Attorney General of the date of hearing allowing
them opportunity to lead evidence and finally power of the chairman of the Tribunal to
delegate power to one of the members to settle preliminary issues and record evidence. The
position of law clearly suggests that the nature of orders that may be passed by the Tribunal
within the ambit of art, 34 is such that an appeal against none, except the order of disposal,
fought successfully, can provide the Advocate with complete relief from the case, it is in the
sense, Mr. Khan insisted, the forum of appeal created under law is so narrow in scope that it
cannot be said to be an alternative of writ jurisdiction, far less, equally efficacious. On the point
Mr. Khan lends support from the case of Bangladesh Bank v. Zafor Ahmed reported in 56 DLR
(AD) 175.

11. Hack on merit, Mr. Khan raised a number of contentions seeking to assail the initiation and
continuation of the proceedings. All taken together virtually boils down to five; first, the
complaint petition is no complaint in the eye of law as the same, according to rule 41A, has to
be lodged with a fees of Tk. 1000/- but no fees has ever been paid by the EC. Second, Rule 42
requires the BBC to direct an initial inquiry into the allegation so as to protect the Advocates
from unnecessary harassment in misconceived, untenable and vexatious cases. The Executive
Committee although proceeded in that line by fixing a date for hearing, the BBC suddenly
stepped in and in total disregard of the legal requirements, referred the case straight to the
Tribunal, to the utter prejudice of the hard-earned reputation of the petitioner. Third, in making
the reference, the bar council failed to appreciate that the allegations complaint made against
the petitioner is ex facie misconceived and does not constitute, in any view, 'professional
misconduct' inasmuch as it is a longstanding practice at the bar to issue certificate on the basis
of the open-court-pronouncement of orders or judgments. And it is well-known to the
members of the bar council, that order issuing rule and stay are first verbally pronounced in
open court and signed later after finalization and during finalization Hon'ble Judges may, rarely
though, bring about, as of privilege, minor changes especially in the interim orders without
affecting their basic character. But the lawyers, particularly in cases involving urgency, cannot
afford to wait (till finalization of the order and as of duly issue certificates basing on verbal
pronouncements with a view to preventing justice being defeated by delay, Fourth, bar council,
in making the reference, pretended ignorance about the fairly well-settled legal position that
unless the act or omission on the part of a lawyer as alleged, is willful or actuated by ulterior
motive it cannot be said to have constituted 'professional misconduct' attracting penal
consequences, Finally, and most importantly. bar council demonstrated a grotesque disregard
to the clarification given by the Hon'ble Presiding Judge, concerning the subsequent
modification as manifested in the reply submitted by the petitioner and willfully turned a blind
eye to (he fact that with the subsequent modification owned by the Hon'ble Judge, bona fide of
the Advocate in issuing the certificate stood established to the exclusion or any case of
professional misconduct against him to be referred to by the BBC or enquired into by the
Tribunal.

12. Mr. Khan passionately drew our attention to the professional attainment and standing of
the petitioner, a former secretary of the Supreme Court bar: his life-long struggle for honesty,
integrity and morality in discharge of professional duties of the lawyers as well as his reputation
for his own integrity and unblemished professional career. bar council, he added, is not there to
allow extra privilege to any quarters, how high so ever, or act under the dictates of anybody
whosoever at the cost of professional attainments of an Advocate and put a member of the bar
on dock at will for no good reason.

13. Amid many a legal infraction on the part of the BBC in dealing with the case, as canvassed
on behalf of the petitioner, the word 'misconduct' turns out to be the cornerstone of the whole
edifice. But truism is that the phrase, throughout its history, was found to be incapable of any
comprehensive definition, therefore, remained open and undefined. The Indian bar Councils
Act, to begin with, enacted in 1926, was the first codified law in the sub-continent creating bar
council for the purpose of regulating enrolment, all matters concerning legal education,
qualification for enrolment and discipline and control of the profession. Later came the
Advocates Act, 1961, in keeping with the needs of an independent nation.

14. In Pakistan similar legislation called "The Legal Practitioners & bar council Act. 1965" was
made creating Pakistan bar council, amongst others, leaving provisions for three kinds of
punishment for the Advocates, namely, reprimand, suspension and removal from practice if
found guilty of 'professional or other misconduct'. Elaborate Rules were formulated thereunder
containing a chapter (Chapter IV) entitled "Disciplinary Proceedings" detailing the procedure
from filing complaint ending up with the power of the Tribunal to place an Advocate under
temporary suspension pending enquiry and right of the Advocate to prefer appeal to the
Disciplinary Committee of Pakistan bar council against the order. In the sequel, the Bangladesh
Legal Practitioners & bar council Order came into being in 1972, amongst others, creating
Bangladesh bar council vested, amongst others, with similar disciplinary power to punish an
Advocate with reprimand, suspension and removal from practice, if found guilty of 'professional
or other misconduct' followed by Rules framed in the same year called The Bangladesh Legal
Practitioners and bar council Rules, 1972 including an impressive body of cannons of
professional conduct and etiquette adopted from the pre-independence legal regime. Both in
India and Pakistan the phrase "professional or other misconduct" is maintained but for obvious
reasons no legislative attempt was made to define the phrase in any of the countries. So must
be the case with the Bangladesh Legal Practitioners and bar council Order and Rules wherein
the phrase is adopted but left advisedly undefined.

15. Looking back, the Indian bar council Act, 1926, in its section 10 empowered the High Court
to reprimand, suspend or remove any Advocate from practice whom it finds guilty of
professional or other misconduct. It had nowhere defined or described the word 'misconduct'.
The Advocates Act, 1961 enacted in Independent India followed suit. Naturally, the common
law traditions were consistently borne by the countries of this subcontinent by the successive
Acts, Orders and Rules including Bangladesh Legal Practitioners and bar council Order, 1972,
and left the oft-quoted phrase undefined.

16. Jurists and legal philosophers have seen the legal profession in wider perspective than other
professions. They found glory and uniqueness of the profession in terms of its crucial and
delicate role in the administration of justice and commitment to the society at large. In the
same vein, the lawyers are often called 'leaders' and 'conscience-keepers' of the society. It is
the only profession which is called 'learned' and 'noble', derogation from which means
degradation of rule of law, the moral foundation of a nation. In view of the crucial rote of the
lawyers as trustees of life, liberty and property of the people and as relentless soldiers in the
endless fight for upholding rule of law, democracy and the Constitution, high standard of
morality is expected of them. This unique position of the office of a lawyer presupposes that he
cannot act as a mouthpiece of his client. The concept of the profession of law has found
illuminating expression in the words of Alexander H. Robbins in his "A Treatise on American
Advocacy" (American Edition, 1904. pages. 209-10).

"No caste, guild, craft or profession is possessed of a code of ethics which is more jealously
guarded than that of the profession of law. No profession not even that of doctors or the
preachers is as intimate in their relationship with people as that of the lawyers, to the doctors
the patent discovers his physical ailment and symptoms, to the preacher the communicant
broaches as a general rule only those things that commend him in the eye of heaven), or those
sins of his own for which he is in great fear of eternal punishment, but to his lawyer he
unburdens his family relationship and quarrel and the skeletons in his closet. To him he often
commits the duty of saving his life, of protecting of his good names of safeguarding his
property, or regaining for him his liberty. Under such solemn and sacred responsibilities, the
profession feels that it owes to the people who thus extend to its members such unparalleled
confidence the duty of maintaining the honor and integrity of that profession on a moral plane
higher than that of a merchant the trader or the mechanic"

17. While explaining the professional position of a lawyer Geo. W. Warvelle in "Essays in Legal
Ethics" (2nd Ed. P-40) echoed the words of Rabbins:

"A lawyer is not alone a gentleman,' he is a sworn minister of justice. His office imposes high
moral duties and grave responsibilities, and he is held to a strict fulfillment of all that these
matters imply interest of vast magnitude are entrusted to him; confidence is reposed to him;
life liberty and property are committed to his care; he must be equal to the responsibilities
which they create."
18. The American bar Association in its first Code of Legal Ethics resounded in the same spirit
the glory of the profession of law in a single but highly revealing sentence:

"A lawyer is and must ever be the high priest at the shrine of justice".

19. True it is that the profession of law is built up on the high ideals of morality and ethics as is
illustrated above. But lawyers as humans are not free from vices and fallibilities. Over and
above, as professionals they have no less duty to defend the right and interest of their clients. It
is difficult for many of them to reconcile their duly to the clients and their overriding duty to
assist the court in administration of justice. Niceties of the profession and of the
professionalism of a lawyer. For the precise reason, rests in his ability to master the delicate art
of reconciling these two apparently different but, at the end uniform interests in a way
commensurate with the cause of justice. The reconciliation is bound to prove an impossibility if
the lawyer continues to insist on points, he believes legally unsound, and does not hesitate to
push through to the extent of misdirecting the course of justice, in this juncture we could
profitably borrow the eloquent words of Lord Reid:

"Every counsel has a duty to his client fearlessly to raise every issue, advance every
argument, and ask every question, however distasteful, which he thinks will help his client's
case. As an officer of the court concerned in the administration of justice, he has an overriding
duty to the court, to the standard of his profession, and to the public, which may, and often
does, lead to a conflict with his client's wishes or with what the client thinks are his personal
interest. Counsel must not mislead the court, he must not lend himself to casting aspersions on
the other party or witness for which there is no sufficient basis in the information in his
possession, he must not withhold authorities or documents which may tell against his clients
but which the law or the standards of his profession require him to produce." [Rondel v.
Worsley, (1967) All ER 993]

20. Failure on the part of the lawyer to slop short of misdirecting the court and excessive
concentration on the interest of his client oblivion of the duty of his exalted office as an officer
of the court and role in the administration of justice serve as breeding ground of professional
misconduct which, unfortunately, is there throughout history necessitating innovation of
control-mechanism for maintenance of discipline, expected standard and finally retention of
public confidence, the reason d'etre of the profession.
The source of common law concept of professional misconduct is the interpretation given to a
provision of UK Medical Act, 1858. The Court of Appeal in Aliinson held (without intending to be
extensive) that:

If it is (shown) that a medical man in pursuit of his profession has done something with
regard to it which would be regarded as disgraceful or dishonorable by his professional
brethren of good repute and competency, then it is open to the General Medical council to say
that he has been guilty of infamous conduct in professional respect. (1894) I QB 750. (Quoted
from Monash University Law Review Vol. 39 (3) P-763)

21. The Aliinson formulation was subsequently applied to professional misconduct on the part
of the Solicitor Re a Solicitor. Ex Parte Law Society, [1912] 1 KB 302, where the statutory
expression was "misconduct" under the Solicitors' Act 1888. The Aliinson lest as applied to
lawyers was also adopted as the lest of "professional misconduct" where [he inherent
jurisdiction of a superior court was invoked to discipline lawyers admitted onto its roll. The
authority usually cited in this respect in Myer v. Elman, [1940] AC 282, 288-9 (Lopes LJ), where
Viscount Maughhm said:

Apart from the statutory grounds ... a Solicitor may he struck of the rolls or suspended on the
ground of professional misconduct, words which has been properly defined as conduct which
would reasonably be regarded as disgraceful or dishonorable by Solicitors of good repute and
competence, [1940] AC 282. (The Law Review, Supra P-790).

22. In Kennedy v. council of Incorporated Law Institute of New South Wales, (1939) 13 ALJ 563
('Kennedy'), the summary of Rich, J. came out in more general terms:

A charge of misconduct as relating to a solicitor need not fall within any definition of wrong
doing. It was enough that it amounted to grave impropriety affecting [the practitioner's]
professional character and was indicative of a failure either to understand or to practice the
precepts of honesty, or fair dealing in relation the court, [the practitioner's] clients or the
public. (Quoted from the Law Review, supra, P 791.)

23. 'Misconduct' by an Attorney, however, is defined in Black's Law Dictionary (Eighth Edition,
page-1020) thus:
 "An attorney's dishonest attempt to persuade a court or jury by using deception or
reprehensible methods. " In Stroud's Judicial Dictionary: "Misconduct means, misconduct
arising from ill-motive; acts of negligence, errors of judgment, or innocent mistake, do not
constitute misconduct.

(Underlines are mine)

24. Having reviewed a good number of authorities our Appellate Division [in Esrarul Haq v. Amir
Hossain (Md.) reported in 66 DLR (AD) 1, came to the following conclusion as to the
connotation of the phrase:

"Broadly speaking misconduct envisages any instance of breach of discipline. It means

improper behaviour, intentional wrong doing or deliberate Violation of a rule of standard of
behavior. The term misconduct is incapable of a precise definition. It may mean delinquency in
its performance of duty and its effect on discipline and the nature of duty. In other words it
means improper behavior which is willful in character. It may involve moral turpitude, but is not
a mere error of judgment, carelessness or negligence in performance of duly.

"(Underlies are mine).

25. Another case disposed of by a Tribunal of the bar council i.e., Kazi Abdul Khaleque v. Haji
A.F. Rahman, reported in 1983 BCR (AD) 397. came up to the Appellate Division but on the
ground concerning sentence having nothing to do with the present issue.

26. The case of Union of India v. J. Ahmed, AIR 1979 SC 1022, although decided on misconduct
under service rules, Comprehensively dealt with misconduct in different dimensions touching
upon carelessness, negligence, omission, error of judgment, misplaced sympathy etc. with
illustrations providing insight about what should or should not constitute punitive misconduct.
The observations made by their lordships touching upon the issues may be of use:

'A single act of omission or error of judgment would ordinarily not constitute misconduct
though if such error or omission results in serious or atrocious consequences. But the same may
amount to misconduct... where it was found that that the two mistakes committed by the
employee while checking the load-sheets and balance-chart would involve possible accident to
the aircraft and possible loss to human life and, therefore, negligence in work in the context of
serious consequences was treated as misconduct. It is, however, difficult to believe that lack of
efficiency or attainment of highest standard in discharge of duty ... would ipso facto constitute
misconduct. There may be negligence in performance in performance of duty and a lapse in
performance of duly or error of judgment in evaluating the developing situation may be
negligence in discharge of duty but would not constitute misconduct unless the consequences
directly attributable to negligence would be such as to be irreparable or the resultant damage
would be so heavy that the degree of culpability would be very high. An error can be indicative
of negligence and the degree of culpability may indicate the grossness of the negligence.
Carelessness can often be productive of more harm than deliberate wickedness or malevolence,
leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to
slip through, there are other more familiar examples instances of which are a railway cabin-
man signaling in a train on the same track where there is a stationary train causing headlong
collision: a nurse giving intravenous injection which ought to be given intramuscular causing
instantaneous death: a pilot overlooking an instrument showing snag in engine and the aircraft
crashing causing heavy loss if life. Misplaced sympathy can he a great evil... But in any case,
failure to attain the highest standard of efficiency in performance of duty permitting an
inference of negligence would not constitute misconduct.'

(Underlines are mine).

27. The authorities cited above, by a close reading, suggest that the phrase "professional
misconduct" has been more described than defined for the reason that the same bears hardly
any meaning isolated from the context of fact and law in which it comes to be decided. Since
punitive measures in case of misconduct are to be taken in the undefined and hazy spectrum of
the phrase the authorities almost in common, lean in favour of penal action in cases of willful or
intentional wrongdoing or deliberate violation of the rules of standard to the exclusion of mere
omission, error of judgment or negligence unless, in variation of the degree, they result in
serious consequences like loss of life or injury beyond repair as is illustrated in Union of India v.
J. Ahmed (supra).

28. Here are some decided cases where the indicted Advocates were found guilty of
misconduct. In Esrarul Haq (supra) the indicted Advocate was found guilty of gross misconduct
and debarred from practice for life. Allegation against him was that he without being an
Advocate falsely personated himself as Advocate of the petitioner of an objection case before a
Settlement Officer and in absence of the petitioner he prayed for rejection of the case being
gained over by the other party. In the proceedings against him initiated on the charge of
misconduct he took, amongst others, the defense that bar council did not have jurisdiction to
try the case as the objection case in which the alleged impersonation was made precedes his
enrolment as an Advocate. But the bar council, High Court Division as well as the Appellate
Division concurrently rejected the defense and finally maintained the punishment.

29. In Kazi Abdul Khaleque (supra), the indicted Advocate not being an Advocate at the material
time took retainership of a company posing himself as an Advocate and also changed the figure
of his fees by interpolation. This was considered to be a case of gross misconduct and his name
was permanently removed from the roll of Advocates.

30. In the case of Shambhu Ram Yadav v. Hanuman Das Khatry. (2001) 6 SSC 1, the indicted
Advocate wrote a letter to his client stating that the judge in whose court the case was pending
takes bribe and asked the client to bribe the judge and obtain a favorable order. Indian bar
council found him guilty of misconduct and awarded major punishment.

31. In the case of Norutanmal Chouraria v. Mr. Murali, (2004) 5 SCC 689, the indicted Advocate
as landlord initiated a rent control case against the appellant, the tenant. The appellant's
allegation was that on several occasions the Advocate dealt kicks on his knee and his back while
he was coming out of the court and in one occasion threatened to kill. For want of evidence
Indian bar council found him not guilty. Supreme Court concurred with the opinion of the bar
council and dismissed the appeal leaving the observation that- "A member of the legal
profession which is a noble one is expected to maintain a standard in a dignified and
determined manner. The standard required to be maintained by the member of the legal
profession must be commensurate with the nobility thereof. A lawyer is obligated to observe
those norms which make him worthy of confidence of the community in him as an officer of the
court."

32. The above are all cases of obvious notoriety which need no support from any authority in
finding the Advocate guilty of misconduct. There are however, borderline cases in which
lawyers were found guilty of misconduct for unprofessional behaviour of certain degree.

33. In N.G. Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135, an Advocate sought for repealed
adjournments before the court of magistrate in order to take his defense. On 04.12.1993 as
adjournment was asked for on the ground that he was unable to speak as was suffering from
throat infection. But he was seen by the complainant of the case in another court in the same
building as usually arguing another case. Supreme Court directed the bar council to examine
the complaint. There are other reported cases in which departure from professional standard is
marginal. Some of them are the cases of Prahlad Saran Gupta v. bar council, AIR 1997 SC 1338;
Harish Chandra Singh v. SM Tripathi, AIR 1997 SC 879 : UP Sales Tax Service Assoc, v. Taxatioon
bar Assc. Agra. AIR 1996 SC 98: John D Souza v. Edward Ani, 1994 SC 975 : M. Veerendra Rao v.
Tekchand, AIR 1985 SC 28; SJ Chowdhury v. State, AIR 1984 SC 618 : PD Khandekar v. bar
council of Maharaslra, AIR 1984 SC 110; In re Advocate. AIR 1971 Ker 161; Brahma Din v.
Chandra Shekhar Shukla, AIR 1958 AP 116; In the matter of a Pleader Ottapalam, AIR 1943 Mad
130, in which Advocates were held guilty of misconduct respectively for retention of money
deposited with the Advocate for the decree-holder even after execution proceeding: misguiding
junior Advocate; attending court with fire arms; failure to return will executed and kept in safe
custody; attesting forged affidavit; failure to attend trial after accepting brief: improper legal
advice; appearing on a forged vakatnama, false identification of deponent; and shouting
political slogan and holding demonstration in court.

34. However, given the declared object of the disciplinary proceedings in legal profession and
strictly qualified sense of the phrase in which it is taken by the regulatory authorities, let us now
turn to the fact of the case at hand. But before that question of maintainability of writ petition
needs be settled.

35. It is worthwhile to call to mind the fact that there is an alternative forum created under the
Legal Practitioners Order leaving scope for appeal against any order of the Tribunal (created
under art, 33 of the Order) passed under art, 34. Question of maintainability of the writ petition
may therefore, naturally arise and Mr. Khan has rightly picked up the point and made extensive
submissions seeking to defend the rule on the point. A plain reading of the provisions of the
Legal Practitioners Order and the Rules taken together makes it amply clear that one of the
functions of the bar council is to 'determine cases of misconduct against Advocates on its roll
and to order punishment (including removal from the roll) in such cases'. Complaint against an
Advocate is required to be addressed to the Secretary. bar council. bar council in order to
decide whether a case is to be summarily rejected or to be referred to a Tribunal is required to
allow the Advocate complained against to reply to the allegations against him and make or
cause to be made, if considers necessary, an initial enquiry into the allegations. After
completion of the process the bar council may either dismiss the complaint or if sees reason to
believe that the concerned Advocate is guilty of misconduct refer the case to a Tribunal for
disposal. bar council, however, is competent to refer a case to the Tribunal on its own motion.

36. On receipt of the reference the Tribunal, as distinguished from an ordinary court vested
with power to take cognizance or framing charge, just enters upon "enquiry" with prior notice
to be served upon the parties, which under the Order and the Rules means by necessary
implication "trial', i.e., 'recording evidence led by the Attorney General (or any other Advocate
on his behalf); reply given in cross-examination: similar evidence, if any, adduced by the
concerned Advocate and hearing argument of the parties ultimately leading to judgment (called
'order') either dismissing the case or awarding any of the punishments provided by law upon
the Advocate, if found guilty.

37. A close reading of the disciplinary provisions of the Legal Practitioners Order and the Rules
ipso facto suggests that the disciplinary proceeding against an Advocate is a composite whole
and is conducted successively by the bar council and the Tribunal as aforesaid. bar council does
everything including registration of the case on receipt of complaint, direct issuance of notice to
the concerned Advocate requesting him to submit his reply; scrutiny of the allegation together
with reply, if any, submitted; hold an initial enquiry, if found necessary; and after completion of
the procedure, if thinks fit, refer the case to the Tribunal for disposal. After receipt of the
reference the Tribunal, as mentioned, is left with no choice but to enter upon trial (called
'enquiry') and pass its judgment on assessment of evidence, oral and documentary finally
leading to disposal of the case.

38. In the scheme of the law 'reference' made by the bar council serves as an order of
cognizance for trial leaving no scope for framing charge by the Tribunal or to pass an order on
the merit of the reference except entering upon trial leading to disposal of the case.
Resultantly, there could be no order passed by the Tribunal before the final order, which, if
successfully fought in appeal, could rid a lawyer from the ordeal of an otherwise misconceived,
false or frivolous prosecution until conclusion of the proceedings which is usually protracted
and cumbersome. It follows, therefore, that until the final order is passed there can be no
appeal, successfully fought during pendency of the enquiry; which can give the indicted
Advocate complete relief from a frivolous case so as to call in aid the rule of exhaustion to the
exclusion of constitutional remedy.

39. Given the position of law in respect of alternative remedy, what is challenged here is the
initiation of the case/proceedings against an Advocate which, as explained earlier, falls within
exclusive jurisdiction of the bar council, totally unconnected with the Tribunal. Question of
alternative remedy is, therefore redundant. It is in the sense we find substance in the argument
of Mr. Khan. Furthermore, it is fairly well-settled that nothing precludes the constitutional
jurisdiction of the High Court Division to interfere with any action or decision taken by the State
agencies, local authorities as well as of any statutory public authority if found tainted with mala
fide, malice in law or coram non judice. High Court Division is not powerless either, in
interference with, in lit cases, any such action if the same is so unreasonable as to attract the
mischief of Art, 31 of the Constitution. No authority need be called in aid of this basic postulate
of the power of judicial review vested in the High Court Division. Accordingly, we are of opinion
that writ petition challenging initiation of proceedings by the bar council made b\ way of
reference under art, 32(2) of the Order as distinguished from an order of the Tribunal, is
maintainable.

40. So far as the merit is concerned, the allegation made in the petition of complaint essentially
is that the petitioner moved a writ petition on behalf of two Paurashabha-Mayors before a
Division Bench of this Division challenging the legality of clause-3 of Circular-6 issued by the EC
on the eve of 2011-Paurashabha Election whereby the EC declared the Paurashabha Mayors
disqualified to seek election without resignation as they were persons holding office of profit
and barred by law so to do maintaining their offices. Having heard the learned Advocate
Hon'ble Court issued Rule and passed an order staying operation of clause-3 of the aforesaid
Cricular-6 so far as the same related to the two Mayors at whose instance the writ petition was
brought. Learned Advocate issued a certificate later in the day stating, inter alia, that- "he
moved a writ petition on behalf of two Mayors challenging the legality of clause-3 of Crcular-6
of the EC and a Division Bench of the High Court Division after hearing was pleased to issue rule
and stayed operation of the impugned clause" (without mentioning the extent of application of
the stay-order). Having received the certificate EC had to issue a revised circular lifting the bar
allowing all the sitting Paurashabha Mayors to contest the election without resigning their
offices. And all of them accordingly contested the election without resignation. Here lies the
grievance of the Election Commission. Specific case of the EC is that the certificate was issued
suppressing the factum of qualified stay which, according to them, was not applicable to all the
Mayors but opened up avenue for all of them to contest the election. The act of issuance of
such a certificate by an Advocate being tantamount to "professional misconduct" action lay
against him.

41. So far so good. If an Advocate issues any certificate which misrepresents the true position of
the case or orders/judgments passed in it adversely affecting any of the parties the aggrieved
party may legitimately bring a complaint to the bar council against the concerned Advocate. On
receipt of the complaint bar council is obligated to record a case. But before asking the
concerned Advocate to submit his reply, far less making reference to the Tribunal, must take
pains of a careful scrutiny of the materials available on records precisely because every act or
omission on the part of an Advocate in his professional business adversely affecting a party
does not necessarily constitute professional misconduct. More so, before making reference, the
complaint and the reply submitted must be subjected to close scrutiny, if necessary', an initial
enquiry be made, in the light of its history and attendant connotations attached to the phrase
by a long line of authority.
42. At common law even negligence (as opposed to gross negligence), professional
incompetence or error of judgment, in absence of other factors, has not been historically
recognized as professional misconduct. In the vast array of disciplinary literature there is one
thread that consistently runs through is that, save as gross negligence or imprudent act or
omission causing certain degree of damage to life and property and impairing right, liberty or
interest of any person, professional misconduct ordinarily presupposes a willful wrongdoing
with some lawful gain in mind.

As per records (including the written reply submitted by the present petitioner), the rule and
stay was taken on 12.12.2010 and the disputed certificate was issued later in the same day. In
quick succession, i.e., on 15.12.2010 the same Advocate moved another writ petition (on behalf
of another Mayor) before another Division Bench of this Division challenging the same barring
clause of Circular-6 of the EC on the same law point in which Hon'ble Court issued rule and
stayed operation of the impugned clause of Circular-6 issued by the EC, this time, in general
terms without qualifying the same in any manner. As the records suggest, copy of the order
granting unqualified stay was officially served upon the EC in due course of time and
considerable time ahead of election which started from 12th day of January, 2011.

43. With the backdrop, came the complaint petition on 27.3.2011, three and half months after
the disputed certificate was issued. The allegation centers round the idea: 'but for the
certificate, the EC could have prevented the rest of the sitting Mayors from contesting the
election which they (Mayors) did in violation of law by virtue of the certificate. Even if we forget
for the moment the second writ petition in which operation of the impugned barring clause of
the Circular-6 was wholesale stayed, it remains unclear how was it constitutionally possible for
the EC to ignore the fact that the question raised in the first writ petition (in connection with
which the certificate was issued) was purely a 'question of law of general applicability' built
upon the proposition that 'office of Paurashabha Mayor is not an office of profit, therefore,
there is no bar for the sitting Mayors to seek election without resignation', and prevent rest of
them from participating in the election maintaining their offices by reason merely of the fact
that stay order was passed only in relation to two Mayors who brought the writ petition. The
story did not end there. The second writ petition (W.P. No. 9865 of 2010) was moved at the
instance of another Mayor challenging the impugned barring clause on the same law point
within four days from the date of order granted in the first writ petition, wherein operation of
the barring clause was wholesale stayed. Notice of the order of wholesale stay was officially
served upon (he EC in due course of time and far before the election-schedule which
necessarily means that the EC was fully aware of the development pretty long time ahead of
the election. But we notice, to our utter surprise, that the EC did not mention a single word in
the complaint petition (filed three and a half months thereafter) about the second writ petition
and the nature of interim order passed in it. The EC rather chose to maintain silence over the
development and made a flat allegation that the certificate issued by the Advocate was
responsible for opening avenue for all the Mayors of Bangladesh to contest the election
without resignation.

44. The conspicuous silence of the complaint about the development in the subsequent writ
petition, seen in its tactual context, irresistibly leads to the conclusion that the non-mention of
material fact is willful. This is a conduct on the part of the EC which not only stands in bold
contrast with its status as a high profile constitutional body but calls for action. Precisely
because, but for the suppression made an otherwise frivolous proceedings might not have
taken birth and continue to the humiliation and harassment of the petitioner. In any view, the
then EC-Members and the Senior Assistant Secretary under whose signature the complaint was
forwarded cannot escape action if the aggrieved person is so advised to take.

45. bar council, seemingly unaware of The story behind the story, yielded to the pressure of the
language of complaint forwarded on behalf of the F.C. and immediately registered a case
without bothering much about the standing of the lawyer concerned and compatibility of the
alleged act of suppression with his personal and professional background and straightway
asked him by a notice to submit his reply. However, an elaborate reply was submitted by the
concerned Advocate categorically staling that he issued the certificate in terms of the verbal
pronouncement of the orders made in open court. As soon as he came to know about the
modification, he rushed to the Hon'ble Presiding Judge of the Bench and drew his Lordship's
attention to the issue. Hon'ble Judge was pleased to clarify the position saying that the
modification was subsequently made and such minor changes in the interim orders before
signing the same is the privilege of the judges and at the same time allowed the petitioner
privilege to refer to his Lordship's comments in his defense should necessity arise. In view of
the long settled legal position we are of the opinion that with the factum of subsequent
modification owned by the Hon'ble Judge whole thing virtually came to an end and there
remained just no such thing as, professional misconduct' sought to be canvassed by the Election
Commission.

46. Even for argument's sake, if it is taken that the Hon'ble Presiding Judge did not own the
subsequent modification, a case of professional misconduct was still a far cry, in that, essential
ingredient of professional misconduct is bad faith. No act done or omission made by a lawyer in
good faith or mere negligence has ever been adjudged as professional misconduct in any
jurisdiction of the common law world. Here the complainant does not impute any ulterior
motive to the Advocate. Nor can it be inferred from the facts and circumstances of the case for
the simple reason that a qualified stay would obviously be more beneficial for the indicted
Advocate than an unqualified stay especially in terms of earning because, spate of potentially
upcoming briefs was still in his sight. The allegation made in the complaint therefore, falls far
short of constituting professional misconduct. The certificate being issued bona fide without
any motive for unlawful gain initiation of proceedings against the petitioner is ex facie arbitrary
oppressive, mechanical and contrary to the purpose of law and presents eminently a fit case for
interference.

47. Above findings naturally beg the question that if the case is as simple as that how the
proceedings could take birth in the central regulating body of the lawyers, like the bar council
and was allowed to roll up to the Tribunal, that too, against a very distinguished member of the
bar. If not earlier, it ought to have died its natural death soon after the written reply of the
Advocate was posted in the file.

48. In our anxiety to find out an answer we noticed a number of peculiar tendencies in the
decision-making process of the bar council. First, bar council, for reasons best known to it,
turned a blind eye to the statement made in reply wherein it is clearly said by reference to the
Hon'ble Presiding Judge of the Bench that the open-court pronouncement of wholesale stay
was subsequently modified and displayed its leaning more in favour of prosecution than in
showing due regard to responsibility taken by his Lordship. Second, bar council, mysteriously,
overlooked the wholesale stay passed in the second writ petition which falsified the allegation
of the EC that it was by virtue of the certificate that the Mayors could contest the election
maintaining their offices. Third bar council pretended ignorance of the crucial fact that the EC
knowingly suppressed the development made in the second writ petition and intentionally
observed silence over the same in making the allegation which leads to the one and single-
conclusion: summary dismissal of the case, to say the least, Fourth, bar council acted in a
manner as if the members of the Executive Committee who initially dealt with the matter did
have no knowledge about the standing and professional reputation of the petitioner and the
practice prevailing at the bar in matters of issuance of certificates on the basis of verbal
pronouncement, more so, if the exigency of the case necessitates such certificate in order to
prevent justice being defeated by delay. Finally, bar council was curiously disinclined to turn to
the fact that no inference of bad faith on the part of the lawyer can logically be drawn in the
facts of the case and the issuance of the certificate bona fide on the basis of open-court
pronouncement, is a part of the professional business of the lawyers.

49. The conduct of the bar council looked like as if its machineries are meant to seize every
chance to humiliate a lawyer totally oblivion of his life-time achievement in terms of
respectability, honesty, integrity and good repute. But why? The question finally remains
unanswered as clearly looms far beyond records.

50. Before putting an Advocate on dock bar council must never forget that reputation in the
profession of law is not bestowed upon anyone as a matter of grace Good repute and
unblemished professional career is the result of long struggle at the bar. Putting an Advocate on
dock by itself a stigma to his career which once attached cannot be fully removed even by
subsequent acquittal or dismissal of the complaint. The higher is the standing of the lawyer
proceeded against wider is the damage. bar council, therefore, must be slow in exposing an
Advocate to the Tribunal and possibly the slowest in case of allegations against highly
respectable member of the bar with unquestionable integrity and honesty in professional
career.

51. Even taking things in their ordinary parlance, we cannot but leave certain observations
about these two institutions before we part with this case.

52. The standard of judgment applied to the facts of this case by the bar council is plainly
disappointing. bar council as a statutory autonomous elective body of about forty-five thousand
lawyers of the country has signally failed to maintain its dignity, weight and legal status in
handling a complainant as complainant, how high so ever, it was not mindful about the fact
that Election Commission, although is a high profile constitutional body, was none but a justice
seeker before it. The complaint-petition forwarded by it through one of its Senior Assistant
Secretary had a clear authoritative overtone directed to taking action against the lawyer and
inform what action was taken. The language is more suited to a direction of a superior officer
addressed to his subordinate to do something than to a complaint-petition asking for justice.
The bar council, in its excessive readiness to oblige the EC, ignored the clarification given by his
Lordship, the Hon'ble Presiding Judge of the Bench; ignored the language as well as the
nonpayment of fees the EC was supposed to pay and obeyed the direction of the complainant
by communicating the action taken against the concerned Advocate. The way the bar council
behaved is tantamount to institutional subservience totally unexpected of it and derogatory' to
the dignity and respectability of the entire lawyers community of the country.

53. As far as the EC is concerned, it is a constitutional body composed of strictly selective

personages. The members of the E.C. i.e., the Chief Election Commissioner and the
Commissioners, in addition to their access to the office of the Attorney General and privilege to
take advice from their legal advisors, are supposed to have a general knowledge of the legal
and constitutional grounds upon which decisions taken and orders, directions or circulars issued
by it are ordinarily challenged in writ jurisdictions; the nature of order that are generally passed
and as to how, so to say, an stay order passed on an application raising any law point of general
applicability should be fought and its constitutional limitation to discriminate against person to
person, irrespective of the nature of the order, qualified or unqualified, passed in the case. All
the more surprising is that the EC in conceiving the idea of action against an Advocate
demonstrated a clear lack of knowledge as to what constitutes professional misconduct as
against a lawyer and in doing so has exposed itself to action for gross-misconduct by conscious
suppression of material facts but for what the petitioner would not have to suffer humiliation of
a frivolous proceedings.

54. Unfortunately for the petitioner, who is a former secretary of the bar and well-known for
his unblemished professional career (a knowledge gathered through judicial notice and the
submissions made by the learned Advocate), has fallen victim to the indiscreet and ill-conceived
decisions of these two institutions and pitted against a frivolous and disgraceful proceedings he
does not deserve.

Be that as it may, for what we have stated above we find merit in the Rule. The Rule is,
accordingly, made absolute. The impugned Initiation and continuation of the proceedings in
Complaint Case No. 12 of 2013 against the petitioner now pending before the Tribunal No. 1 of
the bar council is declared to have been initiated and continued without lawful authority and is
of no legal effect and the same is quashed.

The order of stay earlier granted stands vacated.

There shall, however, be no order as to cost.

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)

Writ Petition No. 67 of 1992

Decided On: 21.04.1993

Appellants: Moudud Ahmed

Vs.
Respondent: Bangladesh bar council, Dhaka and others

Hon'ble Judges:
Md. Abdul Jalil and Mohammad Fazlul Karim, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Rafique-ul Hoque, Moudud Ahmed, Azizul Hoque, Anjuman-
Ara-Shelly & Shahina Salam Bari, Advocates

For Respondents/Defendant: SY Salehuzzaman, with Fakhrul Islam, Advocates - For Respondent

Nos. 1 & 2, AK Mujibur Rahman, Deputy Attorney-General - For the Respondent No. 3

Subject: Administrative law

Catch Words

Mentioned IN

Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 27, Constitution Of The People's
Republic Of Bangladesh - Article 3, Constitution Of The People's Republic Of Bangladesh - Article
4(5), Constitution Of The People's Republic Of Bangladesh - Article 40, Constitution Of The
People's Republic Of Bangladesh - Article 51, Constitution Of The People's Republic Of
Bangladesh - Article 6, Constitution Of The People's Republic Of Bangladesh - Article 7,
Constitution Of The People's Republic Of Bangladesh - Article 7(1), Constitution Of The People's
Republic Of Bangladesh - Article 7(2); General Clauses Act, 1897 - Section 6(c); Special Powers
Act, 1974 - Section 3

Disposition:
Appeal dismissed

Citing Reference:

Discussed

JUDGMENT

Md. Abdul Jalil, J.

1. This Rule, at the instance of Mr. Moudud Ahmed, an Advocate of this Court, was issued
calling upon the respondents namely, the Bangladesh bar council and others, to show cause
why the order dated 31.12.91 passed by the Bangladesh bar council in Appeal No. 2 of 1991
dismissing the appeal should not be declared to have been made without any lawful authority
and why it shall not be declared that Rule 66(1) of the Bangladesh Legal Practitioners and bar
council Rules, 1972 is not applicable to the petitioner and the petitioner shall not be declared to
be entitled to practice in the Supreme Court as an Advocate. The case of the petitioner is that
he is a duly elected Member of the Parliament and is acting as leader of the parliamentary party
of Jatiya Party. He was called to the English bar from Lincoln's Inn in 1966 as a Barrister-at-Law
and was enrolled as an Advocate on 31.12.66 by the then East Pakistan bar council and since
then his name is borne on the roll of advocates maintained by the present bar council. He was
granted a certificate by the bar council permitting him to practice in the High Court. On 13.8.91
the bar council by a letter certified that the petitioner is borne on the roll of the Advocates
maintained by the Bangladesh bar council (Annexures 'A' and 'A (1)' respectively). The
petitioner has been involved in politics since his student life and he was elected Member of the
Parliament in 1979, 1986 and 1988 and in the last election held in 1991 while in prison. He held
various political posts in the past and lastly became the Vice President of the Republic and held
that post till 6.12.90 when he resigned to enable Mr. Justice Shahabuddin Ahmed, the Hon'ble
Chief Justice, to be appointed in his place in order to hold the election in the country according
to the wishes and desire of the three alliances of political parties. While the petitioner was
holding the post of Deputy Prime Minister, he received a letter dated 27.7.87 from the then
Secretary of the Supreme Court bar Association through his learned Advocate Dr. M. Zahir
forwarding therewith an extract of resolution of the Executive Committee meeting dated
20.4.97 and an extract of resolution of the General Meeting dated 20.7.87. (Annexures 'B',
'B(1), and B(2)'). The petitioner challenged the validity of the said letter through Dr. M. Zahir
(Annexure C) but no action was taken. The petitioner paid his dues to the bar Association upto
1987 regularly and in 1988 when his Clerk went to deposit the fee for that year, the bar
Association refused to receive the same. Thereafter, the petitioner sent the membership fee by
postal money order in March, 1988 which was also refused. After the petitioner had resigned
from the office of the Vice President, he was put in detention under section 3 of the Special
Powers Act, 1974. While in prison he was elected as Member of the Parliament. The petitioner
was released from the detention by order of the High Court Division. He was also enlarged on
bail in a specific case. After coming out of the prison he returned to his legal practice and
appeared in different Courts. The petitioner was to argue a case on 5.8.91 but he could not
appear due to his pre-occupation in the Parliament. It was reported to him that the learned
Attorney-General mentioned before the Division Bench presided over by Mr. Justice Anwarul
Huq Chowdhury that the petitioner has been removed as a Member of the bar Association in
view of a resolution passed in December, 1990. On hearing the same the petitioner wrote a
letter on 6.8.91 addressed to the President of the Supreme Court bar Association stating that
he had no knowledge of such resolution nor any such decision was ever communicated to him,
nor any show cause notice was issued and requested the President to allow the petitioner to
deposit his arrears dues. In reply, the petitioner was informed that in view of a resolution dated
2.12.90 of the bar Association it could not accept the fees offered by the petitioner. On 7.8.91
while the petitioner was arguing a case before the Division Bench presided over by Mr. Justice
Anwarul Huq Chowdhury the Secretary of the bar Association informed the Court that the
petitioner's membership stood cancelled on 2.12.90 and he was debarred from practising in the
Supreme Court under rule 66(1) of the Bangladesh Legal Practitioners and bar council Rules,
1972. A copy of the extract of the said resolution was for the first time handed over to the
petitioner in the Court room as directed by the Court. The hearing of the case was thereafter
adjourned. The petitioner in order to avoid any humiliation and to enable him to continue with
his legal practice wrote a letter to the Secretary of the bar council (respondent No. 2) to accord
him permission to be a member of the Dhaka District bar Association and he also deposited fee
and he was informed by the respondent No. 2 by letter dated 17.8.91 that the council had no
objection if the petitioner had taken his membership of the Dhaka bar Association but by
another letter of the same date the respondent No. 2 has withdrawn the no objection letter,
issued earlier. On 19.8.91 the petitioner filed an application in the form of an appeal under Rule
66(4) read with Rule 66(3) of the Bangladesh Legal Practitioners and bar council Rules, 1972.
the said appeal was dismissed on the basis of the majority decision expressed on 31.12.91.

2. It is the further case of the petitioner that the bar council was comprised of certain members
who were using the forum for victimising the petitioner on political ground and that his appeal
was dismissed without lawful authority and that the impugned resolution was politically
motivated which had nothing to do with the transaction or the business of the Association and
was passed in excess of its jurisdiction and that the impugned order was passed without lawful
authority.

3. The respondent Nos. 1 and 2, the Bangladesh bar council and the Secretary of the same, filed
an affidavit-in-opposition controverting the material allegations made in the writ petition and
contending, in substance, that under Article 4(5) of the Constitution of the Supreme Court bar
Association a member of the Association who takes up other employment and is unable to
practise cannot remain as a regular member of the Association but if such a member is desirous
of continuing his connection with the Association he may apply for being admitted as an
Associate Member of the Association. In a meeting of the Executive Committee of the
Association held on 20.4.87 it was resolved that those members of the Association who by
taking up employment elsewhere are unable to practise, the aforesaid provisions of the
Constitution should be made known to them in writing and in the general meeting of the
Association held on 20.7.87 it was resolved that those members of the Association who by
taking up employment elsewhere are unable to practise should be informed that they should
apply for Associate Membership of the Association and the said resolutions of the Association
were made known to the petitioner by letter dated 20.7.87. The resolutions of the Association
being in consonance with Rule 70 of the bar council Rules, its effectiveness cannot be impaired
in any way which is binding on the petitioner, the petitioner after being a Minister, Deputy
Prime Minister and Vice President discontinued his practice as an Advocate and as such he
could not remain as a regular member of the Association and thereby he discontinued his
practice as he did not give any intimation to that effect either to the bar council or to the bar
Association. The impugned resolution dated 2.12.90 was passed lawfully and the petitioner lost
his membership of the Association. The petitioner having not applied for fresh membership or
revival of the membership of the Association, he could not practise as an Advocate of the
Supreme Court. The petitioner has no right to practise without being a member of any of the
bar Associations. Since there is a provision for appeal under Article 7(2) of the Constitution of
the Association and the petitioner having failed to file any appeal, his appeal before the bar
council was rightly dismissed being premature.

4. The petitioner has filed an affidavit-in-reply to the said affidavit-in-opposition.

5. Mr. Rafique-ul-Hoque, learned Advocate appearing for the petitioner, submitted that the bar
council did not lake notice of the fact that the impugned appeal was preferred against the order
dated 2.12.90 and acted without lawful authority in not holding that the said resolution was
unauthorised as the grounds on which the petitioner was removed are not covered by the
normal activities of a member of the Association. He further submitted that 4 members of the
bar council who sat as Judges to decide the appeal actively participated in taking the resolution
dated 2.12.90 as appeared from the resolution itself and as such the impugned judgment is
vitiated by bias and partiality as the same persons cannot be the prosecutors and the judges in
respect of the self-same matter. He further submitted that by resolution of the bar Association
in 1987 the petitioner was not removed nor the appeal was directed against that resolution, but
the bar council without any lawful authority disposed of the appeal on the basis of the said
resolution and also failed to take notice of the fact that the petitioner continued as a member
of the bar Association even after the aforesaid resolution. He further submitted that the
mandatory requirements of the Constitution of the bar Association were not complied with and
that the bar council failed to take notice of the fact that the fundamental rights of the
petitioner as guaranteed by Articles 27 and 40 of the Constitution were violated. He further
submitted that Rule 66(1) of the Bangladesh Legal Practitioners and bar council Rules, 1972 had
no application to the petitioner as he was enrolled before the said provision came into being
and that in order to practise in the Supreme Court no membership of the bar Association is
necessary. He also submitted that the elementary principle of natural justice was not observed
in the case as the petitioner was not given any opportunity of being heard before he was
removed by the impugned resolution nor the said resolution was communicated to him nor
published otherwise, which is violative of Article 51 of the Constitution of the Bangladesh
Supreme Court bar Association and the petitioner never ceased to be a member of the
Association and that the resolution itself was passed beyond the jurisdiction of the bar
Association which is a malafide and motivated one.

6. Mr. AY Salehuzzaman, the learned Advocate appearing on behalf of the respondent Nos. 1
and 2, submitted that the petitioner did not take any step under Rule 70 of the bar council
Rules for suspending the certificater in order to join in other profession. So, he cannot now
continue with the legal profession after coming back to the practice. He had also drawn our
attention to the Canons of Professional Conduct and Etiquette formulated by the Bangladesh
bar council in Chapter-IV, clause (8) and the said Rules and submitted that an Advocate should
not as a general rule carry on any other profession or business or be an active partner in or a
salaried official or servant in connection with any such profession or business.
7. It appears from the impugned judgment that out of 15 members composing the bar council,
2 of the members Khondker Mahbubuddin Ahmed and Syed Rezaur Rahman gave contrary
decisions and the judgment was passed by majority of the members. The majority judgment
was delivered by the Chairman Mr. Aminul Huq.

8. The impugned resolution of the bar Association dated 2.12.90 runs as follows :

9. It appears from judgment that although it is mentioned that the appeal is against the
resolution dated 2.12.90 nothing has been mentioned about the said resolution but the bar
council dwelt at length on the resolutions dated 20.4.87 and 20.7.87 as mentioned in the
written statement filed by the respondents and came to the finding that it is quite evident from
the letters submitted to the Supreme Court bar Association by the appellant's learned Advocate
Dr. M. Zahir that the appellant has lost his membership of the Supreme Court bar Association
and that he did not comply with the provision of Rule 66(1) of the Bangladesh Legal
Practitioners and bar council Rules, 1972 while practised after releasing from the prison and
that it amounts to professional misconduct. It was also observed that the appellant preferred
the appeal before the bar council under Rule 66(4) read with Rule 66(3) of the Banalgdesh Legal
Practitioners and bar council Rules, 1972 instead of perusing the matter under the provisions of
Article 7(1) of the Constitution of the Supreme Court bar Association and that the appeal is
premature.

10. Article 7(1) of the Constitution of the Supreme Court bar Association provides for an appeal
by a member who has ceased to be a member by operation of Article 6 of the said Constitution
which provided cessation of membership for default of payment of dues. The order impugned
in the appeal was not for cessation of membership for default but it was on other grounds
which are not provided for in Article 6 of the said Constitution and as such no appeal lies
against the resolution dated 2.12.90 under Article 7(1) or (2) of the said Constitution.

11. Rule 66(3) of the Bangladesh Legal Practitioners and bar council Rules, 1972 provides for an
appeal against rejection of an application to be enrolled as a member and sub-section (4) of
Rule 66 of the said Rules provided for an appeal against the decision of removing him from the
roll of members of the bar Association So, the appeal before the bar council was quite
maintainable under Rule 66(4) of the connected Rules. The bar council did not at all consider
the case of the petitioner touching the impugned resolution. The membership of an Advocate
cannot be taken away unless it is approved by the bar council. So, prima facie, it appears that
the bar council failed to exercise its statutory power in not setting aside the impugned
resolution dated 2.12.90 which was not passed due to non-payment of dues of the Association
or for misappropriation of fund. It appears from the impugned resolution as quoted above that
the removal of the petitioner was made conditional and that unless he resigns from his post
held under President Ershad, his membership would be cancelled and he would never be made
a member. This resolution is not covered by any of the Articles of the Constitution of the bar
Association. Moreover, the purpose and object of the bar Association as contained in Article 3
of the Constitution provides for giving facilities to its members for conducting the profession
using books and journals and other facilities in connection with the profession. It is a welfare
association of the members. It cannot interfere with the private conduct of a member. The post
of Minister or Vice President held by the petitioner had nothing to do with his profession as a
member of the bar Association. The Association cannot impose any restriction towards holding
of such post. The bar council did not at all consider that the resolution directing the petitioner
to tender resignation from a post which has no connection with the profession was not binding
on the petitioner and for non-compliance with the same his membership cannot be ceased.

12. Article 4(5) of the Constitution of the bar Association provides that any member who having
temporarily taken up other employment and is unable to practise or who has retired from
profession, and is desirous of continuing his connection with the Association, may apply to the
Secretary of the Association and the Executive Committee may admit him to such membership.
So, this provision is voluntary and any member may take advantage of that article. Now here it
is mentioned that unless he applies for association membership his regular membership will
cease. Mr. Zaman referred to Rule 70 of the bar council Rules, 1972 wherein it is provided that
an Advocate may apply for suspension of his certificate because he intends to discontinue his
practice in order to carry on business or to join some other profession or vocation and he may
apply also for the termination of such suspension. It depends on the option of the member. So,
the submission of Mr. Salchuzzaman that for not taking step under Rule 70 the petitioner has
lost his right of practice is not acceptable. However, neither the membership of the appeal nor
the resolutions of the bar Association taken in 1987 are subject-matter of the appeal and the
appeal was not premature in any way.

13. Rule 66(1) of the bar council Rules, 1972 provides that no person shall practise as an
Advocate unless he is a member of a bar Association of the place at which he ordinarily
practises which Association has been recognised under the rules. Local bar Association has
been defined in Article 2(f) of the Bangladesh Legal Practitioners and bar council Order as
follows:

2(f) "Local bar Association" means any bar Association in a District or Subdivision but does
not include the High Court bar Association or any national bar Association.
14. The Bangladesh Legal Practitioners and bar council Order came into force on 18.5.1972. The
petitioner was not enrolled under that Order but under the bar council Act, 1965 (repealed by
the said Order) wherein there was no such provision. So rule 66(1) framed under the said Order
has no application to the case of the petitioner in view of section 6(c) of the General Clauses
Act. In this connection a reference may be made to the case of Shamsuddin Ahmed Vs.
Bangladesh, reported in 44 DLR (AD) 203 wherein a question arose whether the appellant, who
was an Advocate of the High Court of Bangladesh immediately before the 16th December, 1972
is entitled to practise, by operation of law, before the Appellate Division without having
enrolled as an Advocate under the Supreme Court of Bangladesh (Appellate Division) Rules,
1988. It was held that the appellant was entitled to practise before the Appellate Division of the
then High Court of Bangladesh under President's Order No. 91 of 1972 and this entitlement
continued till 16th December, 1972 and that with effect from that day, which is the day of
commencement of the Constitution of Bangladesh, the provisions of Article 7(3) of President's
Order No. 150 of 1972 came into force, and thereunder any reference in any law to an
Advocate of the High Court of Bangladesh shall be construed as an Advocate entitled to practise
before both the Divisions of the Supreme Court and that even independent of the specific
statute section 6(c) of the General Clauses Act will apply.

15. So, in any view of the matter Rule 66(1) of the bar council Rules has no application in the
case of the petitioner and he is entitled to practise without being a member of any bar
Association in the Supreme Court.

16. In 1987 an extract of the resolution of the Executive Committee meeting dated 20.4.87 and
an extract of the resolution dated 20.7.87 of the bar Association were sent to the petitioner
drawing his attention to the fact that it was resolved that the members who are unable to
remain in the profession they may be enrolled as associate members and letters may be
addressed to them. It was mentioned in that resolution that reportedly some members took up
other employment and were unable to practise and they should be served with notice by the
Secretary of the Association. But in neither of the resolutions the membership of the petitioner
was cancelled nor he was removed from the membership but his membership was cancelled
conditionally by the impugned resolution which is the subject-matter of the appeal before the
bar council. So, question of removal of 1987 does not arise. It is to be mentioned that the
petitioner continued as member of the bar council and a certificate was issued to the petitioner
on 13.8.91 stating that he is borne on the roll of the Advocates.
17. So, it appears that the bar council did not dispose of the appeal in accordance with law and
did not apply its mind to the relevant facts necessary for disposal of the matter. It may be
mentioned in this connection that the petitioner was never termed as a defaulter, nor his name
was ever published anywhere as a defaulter and the copy of the impugned resolution was not
also served on him, nor any notice to show cause was issued before taking such drastic
measure against him which is violative of the elementary principle of natural justice.

18. Apart from that it is also violative of Article 51 of the Constitution of the bar Association
which provides that:

(1) The Association may, by a resolution adopted by two-third majority, in special general
meeting convened for the purpose, censure, suspend or expel any member for wilful breach of
any of the provisions of the Constitution or violation of any decision of the general meeting or
the Executive Committee or for unprofessional or dishonourable conduct or on any other
ground considered sufficient by such special general meeting. Provided that such special
general meeting shall be convened only on the resolution of the Executive Committee adopted
suo motu or on the complaint made by any person.

(2) Such resolution may be adopted by the special general meeting after sufficient notice to
the member concerned as to the charges levelled against him and after providing him adequate
opportunity to defend himself in such meeting.

(3) The voting, if any, in such special general meeting shall be by ballot.

19. Mr. Rafique-ul-Huq has drawn our attention to the impugned resolution and pointed out
that out of the members of the bar council who decided the fate of the appeal, four
participated in taking the impugned resolution, namely. Dr. Kamal Hossain, Syed Ishtiaq Ahmed,
Mr. Shamsul Huq Chowdhury and Khondker Mahbubuddin Ahmed, who delivered speeches and
Dr. Kamal Hossain presided over the meeting.

20. It appears from the judgment that out of 15 members, two did not sign it and two gave
dissenting judgments, namely, Khondker Mahbubuddin Ahmed and Syed Rezaur Rahman and
the rest of the members gave consent to the judgment delivered by the Chairman.
21. It is a universally recognised principle of law that a prosecutor cannot sit as a judge. The
persons named above who participated and delivered speeches in the meeting wherein the
resolution appealed against was taken, sat to dispose of the appeal which was not fair. Mr.
Salehuzzaman also finds difficulty to support their sitting in the appeal. However, it appears
that no objection was raised against their silting during the hearing of the appeal. One of the
attending members, Khondker Mahbubuddin Ahmed delivered judgment in favour of the
petitioner as is already mentioned above, disagreeing with the majority judgment. In the facts
and circumstances as discussed above, we are of the opinion that the bar council did not
exercise its power as required by law and dismissed the appeal without considering and
deciding the points in dispute, holding that the appeal was premature and acted without lawful
authority in not allowing the appeal.

In the result, the Rule is made absolute without any order as to costs. The impugned Judgment
and order dated 13.12.91 passed by the bar council dismissing Appeal No. 2 of 1991 is declared
to have been made without lawful authority and the resolution appealed against is, accordingly,
declared to have been made without any lawful authority and those have no legal effect. It is
further declared that Rule 66(1) of the Bangladesh Legal Practitioners and bar council Rules,
1972 is not applicable to the petitioner and that the petitioner is entitled to practise in the
Supreme Court as an Advocate.