9 Dec 2017 4:02 PM GMT
The Madras High Court has stayed for now the operation of the order issued by the Registrar of the National Company Law Tribunal (NCLT) which made it mandatory for advocates to wear gowns while appearing before any bench of NCLT.A bench of Justice TS Sivagnanam and Justice K Ravichandrabaabu placed the November 14 order issued by NCLT Registrar under interim stay while holding that the...
The Madras High Court has stayed for now the operation of the order issued by the Registrar of the National Company Law Tribunal (NCLT) which made it mandatory for advocates to wear gowns while appearing before any bench of NCLT.
A bench of Justice TS Sivagnanam and Justice K Ravichandrabaabu placed the November 14 order issued by NCLT Registrar under interim stay while holding that the same appeared to be in conflict with the Rules of the Bar Council of India which made wearing of gowns mandatory for an advocate only in case she or he is appearing in the Supreme Court or the high courts.
The order of the court came on petition moved by R Rajesh, an advocate and member of Institute of Company Secretaries of India.
Rajesh had prayed that the order dated November 14 issued by the registrar of the NCLT be declared ultra vires, null and void and quashed as illegal, arbitrary and devoid of any merit.
He had also prayed for an interim stay on the operation of the order.
In the order in question, the Registrar has directed that in addition to the dress code already approved by order passed in August 2016, wearing of gown would be necessary with effect from November 20 in all benches of NCLT for the president, members and advocates.
Appearing for Rajesh, senior advocate PH Aravindh Pandian said the petitioner does not have any grievance as far as dress code of wearing gown is concerned for the president and the members of the tribunal, but contests the part of the order insisting upon wearing of gowns by the advocates before the tribunal.
Pandian contended that the latest NCLT order is in direct conflict with the Bar Council of India Rules pertaining to form of dresses or robes to be worn by the advocates.
He said the rules were amended, pursuant to the recommendations of the Rules committee at its meeting held on August 25, 2001, and the same were approved by the Chief Justice of India on November 12, 2001.
In terms of the said Rules, wearing of gowns by the advocates shall be optional, except when appearing in the Supreme Court or the high courts.
He, therefore, submitted that NCLT does not have the jurisdiction to insist on advocate wearing gowns while appearing before NCLT.
It is to be noted that the August, 2016 order issued by the NCLT registrar contains a clause that advocates or other professionals will appear in their professional dress code as prescribed in the code which applies to their profession which in this case would be the Bar Council of India, the Advocates Act and the Rules.
He also contended that the Registrar NCLT does not have powers to issue such a direction and is in fact statutorily barred from issuing directions which are in conflict with the Rules governing the legal profession.
In support of his argument, Pandian relied upon the Kerala High Court judgment in case titled Jose vs State of Kerala which revolved around Joint Commissioner of Excise insisting on petitioner wearing appropriate robes before he could be heard.
In that case, the high court had held that as per the Bar Council Rules, wearing of gown is not obligatory for advocates appearing before tribunals and authorities. It had noted that male advocates have to wear black coat, white shirt and a band and insistence on gown is misconceived and uncalled for.
He also placed reliance on Allahabad High Court decision in Prayag Das vs Civil Judge, Bulandshahr and others, to emphasise that a high court is the appropriate authority to make rules in terms of the section 34(1) of the Advocates Act.
"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 indirect conflict with the Rules framed by the Bar Council of India where wearing of Advocate' gown has been held to be optional except while appearing in the Supreme Court and in the 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 Rules 17 of the NCLT Rules…," said Justice Sivagnanam.
"…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," he ordered while issuing notices to the NCLT registrar, BCI and the Centre for January 22.