BCI can not remand disciplinary proceedings transferred to it u/s 36B(1) of the Advocates Act, 1961 from the State Bar Council – Supreme Court
ABCAUS Case Law Citation:
ABCAUS 1202 (2017) (04) SC
The Ground of Appeal:
The appellant advocate contended that the time consumed in disposal of the disciplinary authority has put him in a situation of misery and, therefore the initiation of the disciplinary proceedings be quashed so that efflux of time could give the appellant a healing touch and end the agony he had already endured.
The Moot Question:
The singular issue required to be addressed was whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 (“the Act”) to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time.
Important Case Laws Cited/relied upon:
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and other
Atma Ram Mittal v. Ishwar Singh Punia
Gopal Reddy v. State of A.P
High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others
Narendra Singh v. Chhotey Singh and another
Sanjiv Dutta, Dy. Secretary, Ministry of Information & Broadcasting
Dhanraj Singh Choudhary v. Nathulal Vishwakarma1
Brief Facts of the Case:
The appellant was enrolled as an Advocate with the Bar Council of Gujarat. He got elected to the post of Secretary of Gandhinagar Bar Association in 2007 and subsequently he was elected as the President of the Bar Association in 2008. However, the Secretary of the Bar Association, due to differences, leveled false allegations and filed false civil and criminal cases against the appellant and also wrote a letter in this regard to the Secretary, Bar Council of Gujarat alleging that he was denied access to certain records and the accounts and there was misappropriation of huge amount of the Bar Association.
The differences and the misunderstanding between the appellant and the secretary was resolved and a settlement was arrived at. The book of accounts and other records were handed over by the appellant to the Secretary in Sep, 2008.
When the dust appeared to have settled, after the expiry of 15 months, Bar Council of Gujarat call ed for an explanation from the appellant with regard to complaint preferred by the Secretary and that it had received a letter dated 01.06.2010 from the Registrar, High Court of Gujarat regarding complaint against the appellant. Bar Council of Gujarat took suo motu cognizance against the appellant and registered two cases and referred them to Disciplinary Committee (DC).
One of the case was decided against the appellant and DC directed removal of the name of the appellant from roll of Bar Council of Gujarat and imposed costs of Rs.50,000/-. However, in the other case, as no order could be passed during the statutory period, the DC of the Bar Council of Gujarat transferred the case to the BCI which was registered as BCI.
The DC, after hearing the appellant, remanded the matter to the Bar Council of Gujarat with a direction to dispose of the case within a period of one year.
Being aggrieved with the order of BCI, the appellant had filed the present appeal before the Apex Court.
Contentions of the Appellant:
The appellant submitted that the Disciplinary Committee of the BCI could not have remanded the matter to the Disciplinary Committee of the Bar Council of Gujarat as the same was not permissible in a case that has been transferred to the BCI by operation of law under Section 36B(1) of the Act.
Contention of the Respondent:
It was submitted that if the language employed in Section 36B(1) and Section 36(2) are read in juxtaposition, the statute confers plenary power on the BCI and such plenary powers in its ambit and sweep would include the power to remand. It was emphasised that the words “may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36” confer wide jurisdiction on the BCI and do not restrict its jurisdiction only to decide the matter.
Observations made by the Supreme Court:
The Apex Court observed that from the language employed in Section 36B(1), it is discernible that the transfer takes place by operation of law. There is a further command to BCI to dispose it off as if it were a proceeding withdrawn for enquiry under sub-section (2) of Section 36. Thus, the jurisdiction for conducting the enquiry and disposal of the complaint is conferred on the BCI by the mandate of the Act. The context, the intention and the purpose is clear as crystal. The BCI is required to exercise original jurisdiction that was to be exercised by the State Bar Council.
Referring to the various decisions of the , the Hon’ble Court observed that when the language employed under Section 36B(1) and Section 36 are read in juxtaposition, no doubt remains that the legislature desired that the disciplinary proceedings are to be put an end to within a particular time frame by the State Bar Council and if that is not done, the whole thing gets transferred to the BCI, which is obliged to cause an enquiry. Thus there could be no trace of doubt that the original jurisdiction to deal with the complaint stands transferred to the BCI.
The Hon’ble Supreme Court observed that once the original jurisdiction is transferred, relying upon the language that the BCI may dispose of would include any manner of disposal which would include a remand, could not be thought of. The legislature, never intended a complaint made against an Advocate either from the perspective of the complainant or from the delinquent which is transferred to BCI, again to be sent back.
The Hon’ble Supreme Court clarified that there is a distinction between an appellate jurisdiction which the BCI exercises under Section 37 and the original jurisdiction under Section 36B(1). While exercising the appellate jurisdiction, the BCI can remand the matter to the State Bar Council.
Regarding the contention that the words “pass such orders as it considers appropriate” would clothe the BCI with the jurisdiction to remand the matter to the State Bar Council, The Hon’ble Supreme Court observed that the disciplinary authority can remand the matter in exercise of appellate jurisdiction. But there can be no shadow of doubt that the BCI, while exercising original jurisdiction on transfer of a complaint, cannot exercise the appellate jurisdiction.
The Hon’ble Supreme Court further observed that on many an occasion, disciplinary authority of the State Bar Council is not disposing of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. One may not be always right in the decision but that does not mean to be shirking away from taking a decision and allow the matter to be transferred by operation of law to the BCI. A statutory authority is obliged to constantly remind itself that the mandate of the statute is expediency and the stipulation of time is mandatory. It will not be erroneous to say that the Disciplinary Committee is expected to perform its duty within a time frame and not to create a blameworthy situation. When duties are given by law, duties are required to be performed.
The appeal was allowed. The order passed by the Disciplinary Committee of the BCI was set aside and remanded the matter back to the Disciplinary Committee of the BCI to decide the same in accordance with law within a period of three months.