V.S. DESHPANDE, J.

( 1 ) CAN a State Bar Council acting under section 15 of the Advocates Act, 1961

(briefly " the") make a rule to provide for the removal of its Chairman by passing

a resolution of no confidence against him in a meeting of the Bar Council summoned

for that purpose The question has arisen for decision as follows :-

( 2 ) AFTER the Delhi Bar Council was elected in January, 1969, the members of the

Council elected Shri Radhe Mohan Lal as the Chairman of the Delhi Bar Council.

Later differences arose between him and some of the members of the Bar Council. A

meeting of the Bar Council was called on September 22, 1972 in which a resolution

of no confidence was passed against the Chairman by a majority. But the Chairman

disputed the legality of the resolution and sought the directions of the Bar Council of

India who heard the Chairman and the Delhi Bar Council on October 21, 1972. The

majority of the Bar Council of India expressed the view that (a) there was no

provision either in the or under the Rules framed thereunder for removal of the

Chairman by a no confidence motion passed against him in a meeting of the liar

Council, and (b) no rule for such removal of the Chairman can be made under the

Act by the State Bar Council under section 15.

( 3 ) THE present writ petition was originally filed both against the Bar Council of

India and Shri Radhe Mohan Lal but in the meanwhile the Delhi Bar Council elected

in 1969 expired. By a fresh election a new Bar Council has come into being and a

different person was elected as the Chairman, Shri Radhe Mohan Lal having gone

out of office when the previous Delhi Bar Council ceased to exist on the expiry of its

tern. The petitioner, therefore, does not now press for the decision of the question

whether the resolution of no confidence could be passed by it against Shri Radhe

Mohan Lal validly inasmuch as such a question has become academic on the

retirement of Shri Radhe Mohan Lal. The petitioner has, however, made a draft

amendment of Rule 33 to ensure that a Chairman of the Delhi Bar Council may be

removed by the passing of such a vote of no confidence against him in a meeting of

the Bar Council summoned for that purpose. The petitioner is aggrieved by the

decision of the Bar Council of India that no such. rule can be made under the at

all. The only relief now sought by the petitioner is for a declaration against the Bar

council of India that such a rule can be made under the so that once such a rule

is made by the Delhi Bar Council, the Bar Council of India may give their assent to it.

( 4 ) THE petition is opposed by the Bar Council of India in accordance with their

majority decision which had expressed a view that the Delhi Bar Council has no

power to make such a rule under section 15 of the.

( 5 ) THE following provisions of the are relevant for consideration in the

decision of the question whether such a rule can be made under section 15.

According to the Preamble, one of the objects of the is the constitution of Bar

Councils. Chapter II of the deals with the Constitution of the Bar Councils and

with provisions relating to them. Section 3 (3) states that "there shall be a Chairman

and a Vice-Chairman of each State Bar Council elected by the Council in such

manner as may be prescribed". Section 5 makes every Bar Council a body corporate

having perpetual succession and a common seal with power to acquire and hold

property and to sue and be liable to be sued. Section 6 describes the functions of

State Bar Councils. According to section 8, the term of office of the members of the

State Bar Council is four years. Section IOA lays down the disqualifications by the

incurring of which an elected member of a Bar Council shall be deemed to have

vacated his office or would be otherwise disqualified under any rule made by the Bar

Council of India. The relevant part of section 15 is as follows :- "15. Power to make

rules.- (1) A Bar Council may make rules to carry out the purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the foregoing power,

such rules may provide for- (c) the manner of election of the Chairman and the

Vicechairman of the Bar Council. "

( 6 ) ALL that we know from the statute is that there is to be a Chairman of each

State Bar Council elected by the Council in such manner as may be prescribed and

that rules can be made to carry out this statutory purpose. No doubt, two learned

bodies of lawyers, namely, the Delhi Bar Counsil and the Bar Council of India, have

differed on the question whether rule can be made to provide for the removal of the

Chairman of the Bar Council by a resolution of no confidence passed against him in

a meeting of the Bar Council summoned for that purpose. One reason why the two

learned bodies have not been able to solve this problem is that they relied only on

the language of the statute. On the one hand, the Delhi Bar Council contends that

the power given to the State Bar Council to elect its Chairman carries with it the

capacity of the said Bar Council to remove the Chairman. On the other hand, the Bar

Council of India has expressed the view that in the absence of a definitive provision

in the Advocates Act, 1961 enabling the making-of such a rule, the power of the

State Bar Council to make such a rule cannot be implied. In short, the Bar Council of

India sticks to the literal construction of the and would not permit the rule to be

made simply because a specific provision for the making of such a rule is not to be

found in the.

( 7 ) IN our view, to quote Justice Frankfurter, "the policy of a statute should be

drawn out of its terms, as nourished by their proper environment, and not, like

nitrogen, out of the air. " (D. A. Schulte, Incorporated v. Gangi, 328 U. S. 108, 121-

22 (1946) ). The ecology of this statute like all others is that part of common law

which has been received in India as rules of "justice, equity and good conscience" as

suited to the genius of this country. This much of common law is in force in India in

view of Article 372 (1) of the Constitution as held by the nine Judges Bench of the

Supreme Court in Superintendent and Legal Remembrancer, State of West Bengal v.

Corporation of Calcutta, (1967 2 S. C. R. 170 at 180 and 186. As pointed out at page

187 of the report in this respect the decision did not differ from the previous

decisions of the Court in the Director of Rationing and Distribution v. The

Corporation of Calcutta and others, (1961) I S. C. R. 158, and V. S. Rice and Oil Mills

v. State of Andhra Pradesh, (1964) 7 S. C. R. 456.

( 8 ) THE relationship between statute law and common law has been expressed by

professor W. M. Geldart as follows:-"the most fundamental part of our law is still

Common Law. . . . . . . . . . . . . . The statutes assume the existence of the Common

Law; they are the addenda and errata of the book of the Common Law ; they would

have no meaning except by reference to the Common Law. " (Elements of English

Law, page 9 ). IT is well known rule of construction of statutes that "the legislature

does not intend to make any substantial alteration in the existing law beyond the

immediate scope and the object of the statute" (Maxwell on Interpretation of

Statutes, 12th edition, page 116 ). We have, therefore, to look to the existing

common law which surrounds the statutory provision giving the State Bar Council

the power to elect a Chairman.

( 9 ) THE State Bar Council is a statutory corporation and its Chairmanship is a

statutory office. The Chairman for the time being is thus the holder of an office. He

is not an employee of anyone. This position recalls the observation of Lord Reid in

Ridge v. Baldwin, (1964) A. C. 40 at 65, that the cases of dismissal relate to three

kinds of persons, namely, (1) a servant appointed by the master, (2) holder of an

office at pleasure, and (3) holder of an office otherwise than at pleasure. An office is

often distinct from employment. As observed by Lord Normand in Dale v. Inland

Revenue Commissioners, (1954) A. C. II at 26," office is an apt word to describe a

trustees position, or any position in which services are due by the holder and in

which the holder has no employer. " Another earmark of office is indicated in the

following description by Rowlatt. in Great Western Rly. Co. v. Bater, (1920) 3 K. B.

266, as follows :-"an office or employment which was a subsisting, permanent,

substantive position which had an existence independent of the person who filled it,

which went on and was filled in succession by successive holders, there can be no

doubt that the director of a company holds such an office as is described. "further,

an office may be one of profit or it may be honorary. The payment of remuneration

is not a necessary condition of an office (Dr. Deorao v. Keshav Laxnwn Borkar, AIR

1958 Bom 314 [LQ/BomHC/1957/299] , per Chainani and Shelat. ).

( 10 ) WHAT is the common law relating to the removal from office of the holder

thereof who is not a servant of anyone In answering this question, a distinction

between two different meanings of the word "officer" may be borne in mind. A

person may come to occupy an office either by appointment or by election. In either

case, he may be an employee of a corporation or he may be only the holder of an

office of the corporation and not its employee. The essence of the employment is

the disciplinary power of the employer over the employee. This is expressed in the

principle embodied in section 16 of the General Clauses Act that the power to

appoint includes the power to suspend or dismiss. The power of suspension is

mainly connected with the power to inquire into the conduct of the employee

signifying the disciplinary power of the employer over the employee. This

disciplinary aspect is not attached to the holder of an office which is not an

employment. When the employer is not a single person but is a body of persons, the

decision to employ is taken by such a body in a meeting by majority. Such a

resolution may be analogous to an election. In this sense, an employee may be

appointed by an election. In such circumstances, the process of appointment and

election may be analogous (Hayman vs. Governors of Rugby School, (1874) 18 L. R.

Equity Cases 28 ). But the occupation of an office by the holder thereof even by

appointment and much more so by election is an entirely different process. The

distinction between the two is not found to have been made by a Division Bench of

this Court in Mohan Chandra v. The Institute of Chartered Accountants, AIR 1972

Delhi 91, when it was observed obiter that the principle of section 16 was relevant

to the consideration of the removal of the elected President of the Institute of

Chartered Accountants. Nor can it be said that every appointment results in an

employment. An appointed arbitrator is not, for instance, an employee of anyone. In

East India Film Studios v. P. K. Mukherjee, AIR 1954 Calcutta 41, section 16 of the

General Clauses Act was held inapplicable to the removal of an arbitrator firstly

because he was not an employee and secondly because specific provisions for his

removal inconsistent with section 16 of the General Clauses Act have been made in

the Arbitration Act.

( 11 ) QUITE irrespective of the question whether the office of the chairman of a

State Bar Council is held at pleasure or for the same period for which the Bar

Council is elected, the common law relating to the removal of the holder of an office

is that the body which has the authority to elect its Chairman has the inherent and

implied power to remove the Chairman. If the Chairman holds his office at pleasure,

then he can be removed at will. But it he holds his office otherwise than at pleasure,

he can be removed only for cause after notice and hearing. It would suffice to quote

the following from 19 Corpus Juris Secundum, pages 71-72 :-"the power of amotion

is inherent in every private corporation as an incident of its being and may be

expressly conferred by statute or charter in recognition, it has been said of at least

one statute, of the inherent nature of the power. While ministerial officers and

agents who are elected or appointed by the board of directors are removable at will,

without a cause being assigned and without notice or a hearing, directors, trustees,

and officers elected by the corporation at large may, by virtue of this inherent

power, and irrespective of the existence of a provision for removal in the articles or

bye-laws, be removed for cause, but not otherwise, and only after notice and a

hearing or an opportunity of being heard. "to the same effect is the statement of

law in 19 American Jurisprudence 2d, pages 545 and 547 and in Bouviers Law

Dictionary, 3rd edition. Volume I, page 190. The English common law relating to the

removal or "amotion" of the holder of an office is stated as follows in Jewwitts

Dictionary of English Law at page 115:-"in municipal boroughs, a removal from his

office of a councillor by his fellow-councillors, frequently exercised before the

Municipal Corporations Act, 1835, and not expressly abolished either by that Act or

by the Municipal Corporations Act, 1882. The power of amotion is implied or -may

be conferred by charter. "similar statements of law occur in Whartons Law Lexicon,

14th E edition, pages 59-60 and In 9 Halsburys Lalws of England, 3rd Edition,

paragraph 67, with regard to an office held at pleasure.

( 12 ) THE View expressed by the majority of the Bar Council of India that a rule

cannot be made under section 15 of the Advocates Act for the removal of the

Chairman of the State Bar Council leads to the result that once elected such

Chairman is irremovable. He would go out of office only when the State Bar Council

does at the expiry of its statutory tennure. Such a result can be justified only if the

common law stated above has been changed by the statute. The View of the Bar

Council of India is, on the other hand, based on the very silence of the statute on

this point. We are of the opinion that such silence indicates that the common law

regarding the removal of the holder of an office remains unchanged. The statute

does not, therefore, have to say that the Chairman of the State Bar Council Would

be removable by a resolution of no confidence. The reason is that such power of

removal is inherent in the Bar Council which elects its Chairman. "the power given to

the State Bar Council to elect its Chairman is the codification of only a part of the

common law. Such codification does not change the other part of the common law

which implies in the State Bar Council the power to remove the Chairman so elected.

Just as rules can be made under section 15 to carry out the expressed power of the

Bar Council to elect the Chairman, it would appear that rules may also be made to

carry out the implied power of the State Bar Council to remove the Chairman. The

two powers are inseparable in common law. They can be separated only by a

statutory intervention. So long as this is not one, they would remain connected with

each other even though only one of the powers, namely, the power of election has

been made statutory while the other power, namely, the power of removal has been

left to be implied. If such a power is not implied, the mere codification of the power

to elect would result in a change in the common law. There is no warrant for

implying such a change. On the contrary, the construction of the statute in the light

of the common law implies such a power in the State Bar Council. "

( 13 ) SHRI Hingorani for the Bar Council of India relied on the decision in Lakshmi

Narain Misra v. Municipal Board, 1962 Allahabad Law Journal 113, to support his

contention that the Chairman of the State Bar Council who is once elected cannot be

removed from office by the resolution of the State Bar Council. The term of office of

the Vice-President of the Municipal Board in that case was one year. It was held that

the said term could not be cut down and the Municipal Board could not cancel the

resolution electing the - appellant as the Vice-President. No such tenure has been

fixed for the Chairman of the State Bar Council under the Advocates Act. On the

contrary, r the common law rule that the holder of an office can be removed for a

cause even if he has a fixed tenure of office was followed by the Supreme Court in

Dr. Bool Chand v. The Chancellor, Kurukshetra University, (1968) 1 S. C. R. 434.

The Vice-Chancellor had been appointed for a period of three years. Nevertheless,

his appointment was held to be terminable before the expiry of three years for

cause and after lie was given a hearing following Ridge v. Baldwin.

( 14 ) IT is, therefore, declared "that the petitioner Delhi Bar Council is entitled

under section 15 of the Advocates Act, 1961 to make a rule to provide for the

summoning of a meeting of the said Council for the express purpose of moving a

motion of no confidence against the Chairman and for the passage of such a

resolution resulting in the removal of the Chairman from office. This is our

construction of section 15 (1) and 15 (2) (e) read with section 3 (3) of the. This

procedure would also give notice and hearing to the Chairman before the proposed

resolution is voted upon. While we hold that the proposed rule will be within the

scope of the rule-making power of the State Bar Council, the consent of the Bar

Council of India to the rule would of course be necessary in accordance with law. "

As the Delhi Bar Council and the Bar Council of India differed in their views on this

question in good faith, we make no order as to costs in this writ petition. The writ

petition is allowed in the above terms.