BAN GLADESH U N IVERSITY OF PROFESSION ALS

Department of Law

Case study on
A.M. AMIN UDDIN Vs. BANGLADESH BAR
COUNCIL AND ORS.
MOUDUD AHMED VS BANGLADESH BAR
COUNCIL, DHAKA AND OTHERS

Course Code: Law 4803

Course Title: Administrative Law

Submitted by: Submitted to:

Tauky Yasir Nafi Psymhe Wadud
17421014 (B) Lecturer
Department of law Department of law
Bangladesh University of professions Bangladesh University of Professionals

Submission Date: 24.09.2020

 Case #1

A.M. AMIN UDDIN VS. BANGLADESH BAR COUNCIL AND ORS.

Appellants: Respondent:
A.M. Amin Uddin Bangladesh Bar Council
and Ors.

Advocate appears
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:
1) Whether the suit is maintainable in the court or not?
2) Whether proper proceeding has been carried out or not?
3) Whether there was any professional misconduct or not?

Arguments 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. 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. 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 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.
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.
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: It is reasonably 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 legitimately replied by the Mr. Khan that the initiation of the complaint case
was imperfect and so the complaint required not to be attempted within the appellate tribunal
as referred  within 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.
 Case #2

MOUDUD AHMED VS BANGLADESH BAR COUNCIL, DHAKA AND OTHERS

Appellant/Plaintiff Respondent/Defendant
Moudud Ahmed Bangladesh bar Council
Dhaka and Others

Advocates appeared
Rafique-ul Hoque, Moudud Ahmed, Azizul Hoque, Anjuman-Ara-Shelly & Shahina Salam
Bari, Advocates appeard for the appellant.
SY Salehuzzaman, with Fakhrul Islam, Advocates - For Respondent Nos. 1 & 2, AK Mujibur
Rahman appeard for the respondants.

Bench
Md. Abdul Jalil and Mohammad Fazlul Karim, JJ.

Fact: Mr. Moudud is a duly elected Member of the Parliament and is acting as leader of the
parliamentary party of Jatiya Party. On 31.12.66 by the then East Pakistan bar council his
name is borne on the role 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. 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.While the petitioner was holding the post of Deputy Prime Minister, he
received a letter from the Secretary of the Supreme Court bar Association an extract of
resolution of the Executive Committee meeting and an extract of resolution of the General
Meeting. The petitioner challenged the validity of the said letter through Dr. M. Zahir but no
action was taken. 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. 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 he
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 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. 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
based on the majority decision expressed.

Issue: Whether the appellant Mr. Moudud Ahmed is entitled to practice as an advocate in the
supreme court or not?

Argument on behalf of the appellant: The Learned Advocate submitted that the bar council
did not take 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
unauthorized as the grounds on which the petitioner was removed are not covered by the
normal activities of a member of the Association. They also 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.
They 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 practice 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.

Argument on behalf of the respondent: The Learned Advocate argued that the petitioner
did not take any step under Rule 70 of the bar council Rules for suspending the certificate in
order to join in other profession. So, he cannot now continue with the legal profession after
coming back to the practice. 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 petitioner
has no right to practice 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.

Decision: 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. The impugned Judgment that was
order dated 13.12.91 passed by the bar council dismissing appeal 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. Also,
It is further declared by the court 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
practice in the Supreme Court as an Advocate.

Reasoning: In this case Bangladesh Bar Council did not comply with 66(3) of the
Bangladesh Legal Practitioners and bar council Rules, 1972 and under 66(4) of the same Act
the appeal by the petitioner is maintainable. The bar council failed to exercise its statutory
power in not setting aside the impugned resolution which was not passed due to non-payment
of dues of the Association or for misappropriation of fund. This resolution is not covered by
any of the Articles of the Constitution of the bar Association. Also, 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. It
is also seemed t 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. And that is
why the court give its decision in favor of the appellant.