Disciplinary enquiry vitiated for not allowing cross-examination of witnesses – Supreme Court

Disciplinary enquiry vitiated for not allowing cross-examination of witnesses. Conclusion based on unknown vernacular language could not have been arrived – SC 

ABCAUS Case Law Citation:
ABCAUS 1182 (2017) (03) SC

Brief Facts of the Case:
The respondent of this appeal had filed a complaint before the Bar Council of Tamil Nadu for initiating action against the appellants advocates regarding their professional misconduct. The State Bar Council referred the complainant to its Disciplinary Committee (DC).

As the Disciplinary Committee could not complete the enquiry within one year, the complaint was transferred to the Bar Council of India. The DC of the Bar Council of India proceeded with the enquiry and found that appellants were running an unauthorized Chit Fund finance business and were depositing the rent and other amounts accrued from the properties of the respondent-complainant towards Chit subscription and were facing a criminal case regarding embezzlement of the Chit prize amount. The Disciplinary Committee, therefore held the appellants guilty of professional misconduct.

However, the DC took a lenient view and merely reprimanded the appellants with strict warning of not to indulge in business activities or fail to maintain proper accounts of their clients. Apart from warning, costs was also awarded coupled with deposit of Rs. 10,000/- in the Advocates Welfare Fund of Bar Council of India failing which they would undergo suspension from practicing as advocates for a period of 6 (six) months.

Aggrieved by the order of the Bar Council of India , the appellant were in appeal before the Hon’ble Supreme Court

Contentions of the Appellants:

1. The Disciplinary Committee had failed to provide a fair opportunity of hearing to them including by not permitting cross-examination of the respondent-complainant.
2. The Disciplinary Committee accepted the allegations made by the respondent-complainant because it was so stated by him on affidavit resulting in serious miscarriage of justice. Merely on the basis of affidavit of the respondent, the Disciplinary Committee could not have recorded a finding of guilt against the appellants.
3. The documents relied upon by the respondent-complainant were in vernacular language. Without translating those documents and giving translated copy thereof to the appellants, the Disciplinary Committee could not have relied on the same much less record a finding with reference to those documents. The enquiry by the Disciplinary Committee and moreso its decision is vitiated for the aforementioned reasons.
4. Even on merits, the Disciplinary Committee could not have recorded a finding of guilt without giving due weightage to the explanation offered by the appellants.
5. The complaint made by him was the outcome of personal differences between the family members. The issues raised by him were at best of civil nature.
6. The appellants had already suffered the ignominy of having a complaint regarding professional misconduct, instituted against them, and more so because of the finding of guilt recorded by the Disciplinary Committee and being reprimanded.

Observations made by the Supreme Court:
According to the Hon’ble Supreme Court the moot question was whether the enquiry conducted by the Disciplinary Committee could be said to be a fair and proper enquiry?

The Hon’ble Court observed that since the allegations made against the appellants were serious and the finding of guilt recorded against them inevitably had civil consequences, it was cardinal that they should have been allowed to cross-examine the concerned witnesses. Not granting of such opportunity, entailed in infraction of principles of natural justice

Also the Hon’ble Apex Court observed that it was beyond appreciation as to how the Disciplinary Committee consisting of members who were not familiar with the vernacular script, could analyse and appreciate the documentary evidence relied by the parties when the said evidence was in a language not known to them. Without proper analysis of those documents, the members of the Disciplinary Committee could not have arrived at any conclusion.

The Hon’ble Court opined that these infirmities in the enquiry conducted by the Disciplinary Committee were fatal and therefore the entire enquiry was vitiated.

The Hon’ble Court further opined that ordinarily it would have relegated the case back to the Bar Council of India for conducting a fresh enquiry but considering the fact that the complaint was made in 1997, that too by none other than the brother of the appellants because of some family disputes and that the appellants have suffered ignominy for all this time due to pendency of enquiry against them and including the finding of guilt recorded by the Disciplinary Committee of the Bar Council of India, the matter must be put at rest.

Held:
The impugned order passed by the Bar Council of India was set aside with direction that appelleant shall not be entitled for refund for deposit if made to the Advocates Welfare Fund of the Bar Council of India.