NANDLAL KHODIDAS BAROT V. BAR COUNCIL OF GUJARAT AND OTHERS AIR 1981 SC 477, 1980 SUPP (1) SCC 318

NANDLAL KHODIDAS BAROT V. BAR COUNCIL OF GUJARAT AND OTHERS AIR 1981 SC 477, 1980 SUPP (1) SCC 318

 

FACTS

This is an appeal under Section 38 of the Advocates Act, 1961. In a proceeding transferred to it under Section 36B of the Act, the Bar Council of India by its order dated 17 April 1977 found that the appellant was guilty of professional misconduct and suspended him from practice for a period of one year. The complaint on which the proceeding was initiated was filed in the Gujarat Bar Council on 9 October, 1971. 

 

ISSUE

Whether the order of the Disciplinary Committee of the Bar Council of India suspending the appellant from practice for one year is valid? 

 

CASE REFERRED TO

In Bar Council of Maharashtra v. M. V. Dabholkar, [AIR 1976 SC 242] this Court having examined the scheme and the provisions of the Advocates Act observed: “It is apparent that a State Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. The Bar Council of a State acts on that reasoned belief... “The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in the rights and privileges of the Advocates as well as the purity and dignity of the profession. “The function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary committee is entrusted with such inquiry....”

 

RATIONALE

The Bar Council of Gujarat passed a resolution on 16 November, 1971 referring several complaints against different advocates including the one against the appellant to the Disciplinary Committee of the Bar Council.

The resolution reads: “Resolved that the following complaints be and are hereby referred to the Disciplinary Committee of the Bar Council.” 

The names of the advocates and the complaints in which they were concerned were listed. Nothing appears from the record of the case to suggest that before referring the complaint against the appellant to the Disciplinary Committee, the State Bar council applied its mind to the allegations made in the complaint and found that there was a prima facie case to go before the Disciplinary Committee

The resolution does not even say that the State Bar Council had considered the complaint and found that there was a prima facie case. 

 

HELD

It must therefore be held that the reference by the State Bar Council to the Disciplinary Committee was invalid and that being so the proceedings before the Disciplinary Committee of Bar Council of Gujarat and also before the Disciplinary Committee of the Bar Council of India on transfer were void. In the view we take it is not necessary to consider the merit of the case.

The appeal is allowed and the order of the Disciplinary Committee of the Bar Council of India suspending the appellant from practice for one year is set aside. There will be no order as to Costs.

 

COMMENTARY

An order passed by the Disciplinary Committee of the State Bar Council is appealable to the Bar Council of India.

The Advocates Act, 1961 provides that if on a receipt of a complaint against an advocate, the State Bar Council has “reason to believe” that the advocate has been guilty of misconduct it shall forward the case to its disciplinary committee. It was held that in forwarding a case to the disciplinary committee, the Bar Council cannot act mechanically; it must apply its mind to find out whether there is any reason to believe that any advocate has been guilty of misconduct. Only when the Bar Council has a reasonable belief that there is a prima facie case of misconduct, a disciplinary committee is to be entrusted with inquiry against the concerned advocate. In the instant case, the reference made by the Council to its disciplinary committee was held bad as the Council had not applied its mind to the complaint and found that there was a prima facie case to go to the disciplinary committee