Case Study (CT-01)

8th Semester-2020
Course Name: Administrative Law
Course Code: Law- 4803

Submitted To:

Psyme Wadud
Department of Law
Faculty of Security and Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)

Submitted By:

Name : Mashrur Ahmed Himel

Program : LL.B (Hons)
Class Roll : 17421018
Section: B

Date of Submission: 24.09.2020

 A.M. Amin Uddin

Vs.

Bangladesh bar council and Ors.

Parties:

Appellants: A.M. Amin Uddin

Respondent: Bangladesh bar council and Ors.

Advocates:

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

Respondent: No advocate arrived.

Bench:

M. Moazzam Husain and Md. Badruzzaman, JJ.

Decided On: 14.06.2016

Fact:

The Election Commission (EC), on the event of 2011-Paurashabha-Election, issued a circular

named, Circular-6 dated 09.12.2010, that barred, the Mayors of Purashabha to get the
nomination, as the holders of full-time office( office of profit) in its clause No. 3. It demanded
their resignation to contest for the Paurashabha election as is required by the Local
Government (Paurashabha) Act, 2009. Mayors of Thakurgaon and Tangail Paurashava
challenged the legality of clause 3 of the Circular in a writ petition before a Division Bench the
High Court Division. Hon'ble Court upon heard the case and issued a Rule to stay operation of
the impugned clause of Circular, without mentioning that the stay was applicable to the two
petitioners only. Depending upon the open court pronouncement, the learned advocate issued
the certificate and the election commission had to allow all the members who were otherwise
disqualified as well. Later a certified copy by the judge cleared that the judgment passed by
them was only meant to be for those two Mayors. After that EC filled a complaint against the
advocate and BBC ordered him to show cause. After that, the petitioner immediately rushed to
the Hon'ble Judge. The Hon'ble Judge was kind enough 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 which the petitioner added to his reply.

The Executive Committee of the bar council received the reply, but without considering the
facts, fixed a date for hearing and directed to issue notices to the parties. But no hearing
actually took place and BBC referred the case directly to the tribunal. 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.

This case was then placed to the court as a writ petition and was a case taken into cognizance
by the judge itself as suo moto.

Issues of the Case:

The main issues of the case are-

 Whether the suit is maintainable in the court or not?

 Whether proper proceeding has been carried out or not?
 Whether there was any professional misconduct or not?

Arguments on behalf of the Appellant:

Mr. Riaz Uddin Khan, learned Advocate, appearing for the Advocate started his argument and
said although article- 36 of the Legal Practitioners Order refers an appellate forum for the
aggrieved of the Tribunal under art, 31 of the Order but in the case the challenged portion of
the case is the initiation of the suit. 1 So the question of alternative remedy, therefore, does not
arise. Besides, 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, actually leaves,
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.2

Sub-articles (4) to (9) of the art-34 describes about the proceeding of the suit of the tribunal
and in sub-article (4) describes, about the proceeding, which also completes with a hearing, But

1
Legal Practitioners Order, art-31, 36
2
Legal Practitioners Order, art-34, 36
in the case no scope of hearing was actually provided to the advocate- petitioner., rather they
just served the notice and gave the decision. Then he further proceeds saying the tribunal has a
very narrow scope to try the suits and it can not be compared to the writ jurisdiction of the
court and referred the judgment of Bangladesh Bank v. Zafor Ahmed. 3

Besides rule 41A says the complaint to be filled with a fees of Tk. 1000/- but no fees has ever
been paid by the EC and no inquiry under rule-42 took place.

He further emphasized on the point that, the issue was created by a miscommunication. The
advocate issued the certificate by hearing the open court judgment and later the judgment was
modified by the judge itself and they forgot to communicate it with the advocate- petitioner.
The fact was authenticated by the concerned judge himself in a written form. The tribunal did
not even took that written evidence into the consideration.

The complaint was originally filled mentioning the professional misconduct. Mr. khan then
referred many laws including, The Indian bar Councils Act, 1926, Advocates Act, 1961, The Legal
Practitioners & bar council Act, 1965, the Bangladesh Legal Practitioners & bar council Order
came into being in 1972, The Bangladesh Legal Practitioners and bar council Rules, 1972, UK
Medical Act, 1858, also mentioned about some case named, Rondel v. Worsley, (1967) All ER
993. Ins those things the rights and duties of a lawyer has been clarified. In the case of Myer v.
Elman the court, professional misconduct is the collaboration of wrong doing, improper works
that effects professional character that effect the fair dealing in relation the court. An act of
willingness that is illegal by nature with ill-motive that would have some dishonest gain in other
words.4 Negligence, carelessness ids not the main thing here.5

In the cases of India v. J. Ahmed, AIR 1979 SC 1022, Shambhu Ram Yadav v. Hanuman Das
Khatry. (2001) 6 SSC 1, Norutanmal Chouraria v. Mr. Murali, (2004) 5 SCC 689, Dastane v.
Shrikant S. Shivde, (2001) 6 SCC 135, 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 and Ottapalam, AIR 1943 Mad 130 same types of
judgments were provided which was also referred by the advocate appearing on behalf of the
appellant. But none of the work mentioned in the complaint was intentional or illegal or caused
any unethical gain to the appellant.

Decision:
3
56 DLR (AD) 175.
4
Black's Law Dictionary (Eighth Edition)
5
Esrarul Haq v. Amir Hossain 66 DLR (AD) 1
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. Writ petition challenging initiation of proceedings is maintainable and the
continuation of that complaint case was done any without lawful authority and is of no legal
effect and so the same is quashed. The order of stay that was earlier granted stands vacated.
No order as to cost.

Reasoning:

The court firstly clarified that Question of maintainability of the writ petition has been properly
answered by the Mr. Khan that the initiation of the complaint case was defective and so the
complaint needed not to be tried in the appellate tribunal as referred in the Article-34 of the
order.

The proceeding mentioned under Sub-articles (4) to (9) of the art-34 of the order was not
maintained as the tribunal held no hearing and just decided the suit by giving a notice to the
complaint- petitioner.

Another reason is the tribunal literary ignored the reply of the petitioner which has been
supported by the Honorable Judge himself. After the testimony of the presiding Judge there
were no need for further inquiry and the case should have ended on the very point. But the
testimony was totally ignored and the case was referred to the court that was unnecessary and
illegal. After the testimony it was clear that the issue was created because of the
miscommunication of the judge and the advocate- petitioner.

No court fee was provided by the complainant and that makes the previous case an non
maintainable one in the tribunal.

Again, the suit was originated because of professional misconduct. But no such element that
constitutes professional misconduct, was not proved. There was no intentional work or illegal
gain but a mere misunderstanding.

As per records the rule and stay was taken on 12.12.2010 and the disputed certificate was
issued later in the same day. In quick succession, 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.
Moreover the Election commission had the law and can not give priority the law to a certificate
issued by a lawyer and make mistake.

No affidavit or documents was given by the respondents, even no advocate had arrived to
defend them.