2023 (2) TMI 489 - HC - Companies Law

Public Interest Litigation - imposition of dress code for advocates for appearance before the Tribunal - public servants within the meaning of Section 21 of the Indian Penal Code - HELD THAT - The impugned order is without jurisdiction and authority, and has no basis in law. It is trite legal position that the orders of the Tribunals, either judicial or administrative, are subject to judicial review of the High Courts, as they are subordinate to it. From the conjoint reading of Section 34 of the Advocates Act and the Bar Council of India Rules, it is clear that only the High Courts can frame rules for dress code for the appearance of the Advocates before it, the courts and Tribunals, subordinate to it. In absentia, the rules in chapter IV of the Bar Council of India Rules shall prevail and the Tribunals have no authority to issue any instructions determining the dress code for the appearance of the advocates before it. When there are statutory rules framed by the competent authority and when the statute has conferred the powers on the High Court with reference to prescription of the dress code, any instruction, direction, advisory by the Tribunal, especially when it runs contrary to the statutory rules, is ultravires the Act, and without there being any source of power for issuance of such directions. Thus, wearing of gown is only optional and not mandatory before any courts other than the Supreme Court or the High Court - Further, the power conferred under Rule 51 of the NCLT Rules, is for the purpose of discharging its functions under the Act in accordance with the principles of natural justice and equity and is not an enabling provision to be read along with Section 432 of the Companies Act, 2013, which deals only with right to legal representation, and cannot be meant to confer upon it the power to prescribe the dress code, more so when it is contrary to the Bar Council of India rules. Similarly, the words such other powers used in Rule 16 (f) of the NCLT Rules, 2016 has to be read keeping in mind the later part of the rule dealing with the administrative power of the President as head of the Tribunal, while dealing with the staff, and cannot be stretched to mean to include the power to frame any rule or issue any instruction, in the nature of the one impugned, to prescribe the dress code for the advocates. Petition allowed.

Summary

Issues Involved:
1. Validity of the dress code imposed by the National Company Law Tribunal (NCLT) for advocates.
2. Jurisdiction of the NCLT to prescribe dress code for advocates.
3. Conflict between the NCLT's dress code order and the Advocates Act, 1961, and the Bar Council of India Rules.
4. Authority of High Courts to regulate the dress code for advocates.

Issue-wise Detailed Analysis:

1. Validity of the dress code imposed by the National Company Law Tribunal (NCLT) for advocates:
The petitioner, an advocate and member of the Institute of Company Secretaries of India, challenged the NCLT's order dated 14.11.2017, which mandated the wearing of gowns by advocates appearing before the Tribunal. The petitioner argued that this order conflicted with the Advocates Act, 1961, and the rules framed under Section 49 (1) (gg) of the Advocates Act, which prescribe the form of dresses or robes to be worn by advocates. The petitioner cited the Kerala High Court's decision in Jose v. State of Kerala, which held that the insistence on a particular dress code by an authority was misconceived and uncalled for.

2. Jurisdiction of the NCLT to prescribe dress code for advocates:
The petitioner contended that the NCLT invoked Rule 51 of the NCLT Rules, 2016, which allows the Tribunal to regulate its own procedure, but this power does not extend to prescribing dress codes for advocates. The petitioner further argued that the NCLT's order was in direct conflict with the statutory rules framed by the Bar Council of India under the Advocates Act, 1961, and that only the High Courts have the authority to frame rules regarding the dress code for advocates.

3. Conflict between the NCLT's dress code order and the Advocates Act, 1961, and the Bar Council of India Rules:
The High Court noted that the Advocates Act, 1961, and the Bar Council of India Rules explicitly prescribe the dress code for advocates. According to these rules, wearing a gown is optional except when appearing in the Supreme Court or High Courts. The High Court emphasized that the NCLT's order mandating the wearing of gowns was contrary to these statutory rules and therefore ultravires the Act.

4. Authority of High Courts to regulate the dress code for advocates:
The High Court highlighted that Section 34 of the Advocates Act, 1961, empowers only the High Courts to make rules laying down the conditions for practice, including the dress code for advocates. The High Court also referred to the Supreme Court's decision in Harish Uppal v. Union of India, which affirmed that the right of appearance in courts is within the control and jurisdiction of the courts, and only the High Courts have the authority to frame rules regarding the dress code for advocates.

Conclusion:
The High Court concluded that the NCLT's order dated 14.11.2017 was without jurisdiction and authority, and had no basis in law. The High Court quashed the impugned order, stating that any instruction or direction by the Tribunal prescribing the dress code for advocates, especially when it runs contrary to the statutory rules, is illegal. The High Court also took note of the NCLT's subsequent order dated 27.01.2023, which superseded the earlier instruction and aligned with the Bar Council of India Rules. The writ petition was allowed, and the impugned order was quashed.