Writ petitions under articile 226 of the Constitutions of India praying that in these circumstances stated therein and in the respective affidavits filed therewith the High Court will be pleased to—
(1) issue Writ, Order or Direction more particularly Writ in the nature of Writ of Declaration to declere that the Impugned Order of the 2nd respondent dated 14.11.2017 in file No. 25/02/2017-NCLT as ultra vires, null and void and quash the same as illegal, arbitrary and devoid of merit (in WP. 31852/2017) and
(2) to grant Interim Stay of the operation of the Impugned Order of the 2 respondent dated 14.11.2017 in file No. 25/02/2017-NCLT (in WMP. 35009/2017) respectively pending WP. No. 31852 of 2017.
1. These petitions coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of MR. P.H ARAVINDH PANDIAN SENIOR COUNSEL for MR. R. RAJESH, PETITIONER IN PERSON appearing for himself in both the petitions the court made the following order:—
(Order of the Court was made by T.S SIVAGNANAM, J.)
2. The petitioner is a practising advocate and also a member of the Institute of Company Secretaries of India and has been appearing before this Court and other Tribunals. By way of this Public Interest Litigation, the petitioner seeks for a declaration to declare the order passed by the second respondent, the Registrar, National Company Law Tribunal (NCLT) dated 14.11.2017 in File No. 25/02/2017-NCLT, by which the Registrar has directed that in addition to the dress code already approved vide order dated 02.08.2016 wearing of gown would be necessary with effect from 20.11.2017 in all the benches of NCLT for the Hon'ble President, Members and Advocates. The petitioner does not have any grievance in so far as the direction which has been issued in respect of the dress code to be adhered to by the Hon'ble President and members but challenges the impugned order insisting upon the wearing of gown by the Advocates before the Tribunal.
3. Mr. P.H Arvind Pandian, learned Senior Counsel appearing for the petitioner contended that the impugned order is in direct conflict with the Bar Council of India Rules framed under Section 49(1)(gg) of the Bar Council of India Act, in particular, the Rules pertaining to form of dresses or robes to be worn by Advocates. Rules were amended pursuant to the recommendation of the Rules Committee at its meeting dated 24.08.2001 and approved by the Bar Council of India at its meeting held on 25.08.2001 and 26.08.2001 and the Chief Justice of India approved the Rules vide letter dated 12.11.2001 In terms of the said Rule, wearing of Advocates' gown shall be optional except when appearing in the Supreme Court or in High Courts. Therefore, it is submitted that the second respondent has no jurisdiction to insist that the Advocate appearing before the benches of NCLT should wear the gown.
4. It is further submitted that the earlier notification dated 02.08.2016 has been issued by the second respondent, the Registrar, in exercise of the powers conferred on the NCLT by Rule 51 of the National Company Law Tribunal Rules, 2016 (NCLT Rules). So far as the said order is concerned, the petitioner does not have any grievance because clause (ii) of the said order states that every authorised representative as provided in Section 432 of the Act shall appear before the Tribunal in his/her professional dress if any. Therefore, an Advocate who is a professional will have to adhere to whatever the dress code prescribed in the code which applies to his profession which in the instant case would be the Bar Council of India, the Advocates Act and Rules. The learned senior counsel submits that the power under Rule 51 of the NCLT Rules cannot be invoked by the second respondent to issue the impugned notification as it is a power exercisable to regulate its own procedure in accordance with the Rules of natural justice and equity for the purpose of discharging its functions under the Act and the impugned order cannot be borought within an ambit of Rule 51 of the NCLT Rules. Further, it is submitted that the functions of the second respondent are enumerated in Rule 17 of the NCLT Rules, 2016 and none of the clauses provide power to the Registrar for issuance of the impugned direction. Even assuming that there is such power granted to the Registrer to issue directions, he is statutorily barred from issuing directions which is in conflict with the Rules which govern the legal profession.
5. In support of his contention, the learned senior counsel placed reliance on the decision of the Kerala High Court in the case of Jose v. Stats of Karala reported in 1990 (1) KLT 483. The said petition was filed before the Kerala High Court upon insistence of the Joint Commlssioner of Excise, Trivandrum before whom the petitioner Advocate appeared that he should wear appropriatde robes before he could be heard, This order was put to challenge in the said petition and the Court observed as follows:
“7. A reading of the rules framed by the Bar council of India shows that a black coat of the type mentioned, (with white shirt and white collar, stiff or soft, in cases falling under Rule 1(b), chapkan, achkan or black sherwani, is essential in the case of male Advocates appearing before tribunals and authorities. They should also wear white bands or a bleck tie, Advocates' gown is not obligatory-Male Advocates are properly robed for appearance before tribunsls and authorities, if they are dressed as above.
8. So far as lady Advocates are concerned, they need conform to the genaral dress regulations prescribed in Rule 2, (read with the proviso regarding Gown, bands and black tie), They need not wear Advocates' gown before tribunals and authorities.
9. The proper dress for Advocates for appearance before tribunals and authorities is as stated above. Insistence on wearing of bands only (instead of tie) and Advocates' Gown, is misconceived and uncalled for.”
6. Reliance was also placed on the decision of the Hon'ble supreme Court in the case of Ex. Captain Hrish Uppal v. Union of India (UOI) reported in (2003) 2 SCC 45 to support the contention that in so far as the code of conduct in Courts can only be within the High Court the power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto and such rule framed by the Courts would be valid and binding on all.
7. Reliance was also placed on the decision of the Division Bench of the High Court of Allahabad in the case of Prayag Das v. Civil Judge, Bulandshahr reported in ATR 1974 ALL 133 to emphasize, the point that the High Court is the appropriate authority to make rules in terms of Section 34(1) of the Advocates Act.
8. After hearing the learned senior counsel appearing for the petitioner we are of the prima facie view that the second respondent has no jurisdiction to insist that Advocates appearing before the benches of NCLT should compulsorily wear their Advocates' gown such order would be in direct conflict with the Rules framed by the Bar Council of India, where the wearing of Advocates' gown has been held to be optional except in appearing before the Supreme Court and in High Courts. Apart from that, it is doubtful as to whether the second respondent would have jurisdiction to issue the impugned order going by the functions of the Registrar as enumerated under Rule 17 of the NCLT Rules or for that matter Rule 51 of the NCLT Rules.
9. Thus, for the above reasons, we are satisfied that the petitioner has made out a prima facie case for grant of an interim order. Accordingly, there will be an order of interim stay.
10. Issue notice to the respondents through Court as well as privately for the hearing on 22.01.2018
11. List the matter on 22.01.2018