R.D.Vijay Anand vs The Secretary, The Bar Council of Tamil Nadu and Puducherry. Writ Petition 29258 of 2013 decided on 21 November 2013. Justice K.K. Sasidharan
Full Judgment:
1. Whether the State Bar Council is vested with the power to suspend an Advocate on its rolls from practising the profession of law pending disposal of suo-motu disciplinary proceedings taken by the Bar Council of Tamil Nadu is the core issue that arises for consideration in this writ petition at the instance of a lawyer from Coimbatore, who was suspended, as an interim measure for passing an illegal arbitration award without authority.
Brief facts:
2. The petitioner was enrolled as an Advocate on the Rolls of the Bar Council of Tamil Nadu on 20 December 2002 (Enrollment No. 2115 of 2002). The petitioner is a member of Coimbatore Bar. The petitioner is stated to be a busy legal practitioner in Civil, Criminal and other branches of law.
3. While so, the petitioner received a notice dated 15 October 2013 from the Bar Council of Tamil Nadu to show cause as to why proceedings under Section 35 of the Advocates Act 1961 should not be taken against him for professional misconduct. The show cause notice was followed by an interim order of suspension dated 17 October 2013 pending disposal of the disciplinary proceedings.
4. According to the petitioner, the Bar Council of Tamil Nadu (hereinafter referred to as ‘Bar Council’) in its resolution and notices indicated that he illegally acted as an arbitrator and passed an award dated 16 October 2008. It was the contention of the petitioner that the award was passed only by Mr. R. Vijay Anand, Advocate and as such, Bar Council was not correct in taking action against him.
5. The Bar Council in its counter affidavit contended that several complaints were received from Coimbatore with regard to the functioning of certain Advocates as Arbitral Tribunals, calling people to appear without any authority, passing awards, and executing such awards by various means. The Bar Council took suo motu proceedings against five advocates including the petitioner. Since the Bar Council is of the view that public interest would suffer in case those Advocates are allowed to practice pending disposal of disciplinary proceedings, they were suspended. Accordingly Bar Council justified the impugned order.
Submissions:
6. The learned counsel for the petitioner contended that the compliant preferred by the Coimbatore Bar Association and the award dated 16 October 2008 contain the name of Sri. R. Vijay Anand, Advocate. The petitioner is R.D. Vijay Anand and he is a very busy legal practitioner and a very successful defence lawyer. The petitioner used to send atleast five sessions cases every week to his counter part at Madras High Court. Such a famous lawyer would not indulge in holding illegal arbitration proceedings. The learned counsel further contended that the Bar Council has no right to suspend a lawyer from practice pending initiation of disciplinary proceedings.
7. The learned Standing Counsel for Bar Council by producing the file, the award and acknowledgement card which contain the signature of the petitioner submitted that the signature in the acknowledgement card and the signature in the award are one and the same. The Enrollment papers also contain the very same signature. Therefore it is clear that R. Vijay Anand is none other then the petitioner. According to the learned counsel, the Bar Council possess the inherent power to suspend the Advocates pending disposal of disciplinary proceedings.
Analysis:
8. The petitioner challenges the interim order of suspension primarily on the ground that the Bar Council has no power under the Advocates Act to suspend a legal practitioner pending disposal of proceedings for misconduct. The other contention relates to the identity of the person involved in the misconduct.
9. The Coimbatore Bar Association preferred a complaint dated 27 August 2013 to the Bar Council stating that Thiru P.R. Shanmgam and eight others including the petitioner are conducting illegal arbitral proceedings. The Bar Council on a careful consideration of the complaint resolved to initiate disciplinary proceedings against the concerned advocates. Since the Bar Council wanted these advocates not to do the very same illegal activities pending disposal of proceedings for misconduct, passed an interim order of suspension.
10. The petitioner is one among such Advocates. According to the Bar Council, in the interest of public and in order to maintain dignity, decorum and to uphold the professional etiquette of the legal profession, the Council took this decision invoking the power under Section 6(1)(d) of the Advocates Act, 1961.
Identity of the author of award:
11. According to the petitioner, he is R.D. Vijay Anand and he has nothing to do with the illegal award passed by R. Vijay Anand. The contention would be attractive at first blush. However, its fallacy would be proved by a mere comparison of the signature of the arbitrator as found in the award and the admitted signature of the petitioner in the acknowledgement card evidencing service of suspension order and his application for enrolment.
12. We are now concerned only with the prima facie case. In case the available materials prima facie indicates the role of the petitioner as the author of the illegal award, the same would be sufficient to initiate disciplinary proceedings. It is open to the Advocate to produce materials to prove his defense that it was the work of another Advocate and he was not responsible for such illegal Act. Merely because the award contain the name of R. Vijay Anand and the complaint of Bar Association, Coimbatore also refers to the name of R. Vijay Anand, it cannot be said it was made only by another lawyer. The Coimbatore Bar Association referred to the names of advocates on the basis of the names contained in the respective awards.
13. The leader of the parallel court is stated to be one Thiru Shanmugam. He adopted a modus operandi of conducing parallel courts and arbitral proceedings by adopting the name “P.R. Shanmugam” not withstanding the fact that the name recorded in his enrolment certificate was R. Shanmugam. In the subject case, the Bar Council has taken up a contention that though the name of the petitioner is R.D. Vijay Anand, in order to appear as if the author of the award is a different person, he has put it in the name of R. Vijay Anand. This contention appears to be prima facie correct on account of the documents produced by the Bar Council.
14. The petitioner was suspended on 17 October 2013. The very fact that the Coimbatore Bar supported this move and the further fact that not even a single lawyer from Coimbatore has so far expressed protest on the ground of action being taken against an innocent lawyer also supports the prima facie finding recorded by the Bar Council.
15. The available materials are sufficient to arrive at a prima facie finding that it was only the petitioner, who was instrumental in making the illegal award without any authority. Therefore, I reject the contention with regard to identity.
Power of the Bar Council to order interim suspension:
16. The substantial question raised in the writ petition relates to the authority of the Bar Council to order interim suspension pending disposal of disciplinary proceedings.
17. The Bar Council of India and State Bar Councils are statutory bodies entrusted with the task of safeguarding the rights, privileges and interest of the Advocates. These Apex bodies are equally concerned with the professional conduct of the legal practitioners. The legal profession???d as a noble profession, ordains a very high level of ethics, moral standard and ??? life. The legal profession plays a ??? the administration of justice. The Lawyers act as a catalyst. The lawyer owes ??? to the Court, to his client and even ??? his opponent while discharging his role. The Advocate acts both as an officer of court as well as an ambassador of his client.
The Statute:
18. The Advocates Act contains detailed provisions dealing with the functions, powers and duties of the Bar Council of India and the State Bar Councils. The State Bar Council constituted under Section 3 of the Advocates Act is a body corporate.
19. Section 6 of the Act indicates the functions of Bar Councils. It reads as under: Functions of the State Bar Councils:—
(1) The functions of the State Bar Councils shall be-
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
{(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7;)
(e) to promote and support law reforms;
(f) {(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and paper of legal interest; (eee) to organise legal aid to the poor in the prescribed manner;)
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
{(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of Section 7;)
(h) to perform all other functions conferred on it by or under this Act;
(i) to do all other things necessary for discharging the aforesaid functions.”
20. Section 9 provides for constitution of disciplinary committee.
21. Chapter V deals with conduct of Advocates. Section 35 provides for the reference of complaints against Advocates to the disciplinary committee.
22. The disciplinary committee of the Bar Council initiates proceedings for misconduct upon a reference by the State Bar Council. The Bar Council on receipt of a complaint must examine the complaint to decide as to whether a prima facie case of misconduct has been made out to refer the matter to the disciplinary committee. It is only for this purpose the Bar Council issues notice to the concerned Advocate on receipt of a complaint alleging professional misconduct. The Bar Council on receipt of the reply from the Advocate is expected to function as the Screening Authority and only those cases certified by the Council to be of worth reference alone will be forwarded to the Disciplinary committee.
23. The question therefore is, while taking a decision to refer a complaint to the disciplinary committee for initiating disciplinary proceedings, whether it is open to the Bar Council to pass an interim order of suspension.
24. Section 2(1)(a) defines “Advocate” as an Advocate entered in any roll under the provisions of Advocates Act.
25. The registration before the Bar Council is a mandatory requirement for practising the profession of law. The incidental question is whether the authority empowered to register an Advocate and permit him to practice, got the right to suspend him from practice, pending disciplinary proceedings.
26. Section 6(1)(c) enjoins the State Bar Councils to entertain and determine cases of misconduct against Advocates. Similarly Section 6(1)(i) of the Act enables the Bar Councils to do all other things necessary for discharging the aforesaid functions. Since the Bar Council is the authority to register the Advocates and to maintain their rolls, Section 6 has to be read as the power of the State Bar Council, rather than functions. When it is clear that the Bar Council can entertain complaints and determine cases of misconduct against Advocates on its roll and the incidental right to do all other things necessary for discharging the functions, it is essentially a power and not a function alone. Power to appoint – includes power to suspend/dismiss:
27. Section 16 of the General clauses Act provides that the power to appoint would include the power to suspend or dismiss. The issue whether Section 16 as such would apply to a Bar Council or the Advocates registering their names on the rolls of the council are larger questions, but the General Doctrine underlying this provision can very well be made applicable to a case of this nature. The power to pass an interim order of suspension pending disposal of disciplinary proceedings therefore is a necessary adjunct of the power of registration of an Advocate on the rolls of the Bar Council, which is a pre-requirement for practising law.
28. The complaint received by the Bar Council after initiation, scrutiny and examination, if found to be of substance would be referred to the disciplinary committee. The maximum time for disposal of complaint by the disciplinary committee is indicated as one year. Then there is a provision for appeal to the Bar Council of India under Section 37 of the Act. The order passed by the Bar Council of India is appealable before the Supreme Court under Section 38 of the Act. The power to stay the order passed by the Disciplinary committee is given initially to the Disciplinary Committee and thereafter to the appellate authority. This is often a time consuming process. Even though the Bar Council has found a prima facie case of professional misconduct for the purpose of reference to the Disciplinary Committee, the punishment would come only after the disposal of the appellate proceedings under Section 37 or 38 of the Act.
29. The difficulty would arise in case the Bar Council is of the view that it would not be in public interest to permit the Advocate to practice during the currency of statutory proceedings before the Disciplinary Committee, as otherwise it would adversely affect the dignity, decorum and professional ethics. It is not possible to entertain an argument that the State Bar Council has no power to order interim suspension in such grave cases and should await the ultimate finding given by the disciplinary committee. The parliament while giving disciplinary powers to the Bar Council and Bar Council of India appears to have not contemplated such a helpless situation.
30. The provisions of a statute must be given meaningful interpretation. It is true that courts cannot add something to the statute which was not contemplated by the legislature. However, the approach should be to give a workable interpretation to translate the wishes of the legislature into action.
31. There is no dispute that a law student after graduation is entitled to practice the profession of law on the strength of his enrollment and registration on the rolls of the Bar Council of the State. The only authority empowered under the Advocates Act, 1961 to grant the licence to practice the profession of law is the State Bar Council. The power to revoke the licence permanently or to suspend it for a prescribed period vests in the statutory body. This power would also include, in appropriate cases, to suspend the practice pending disposal of a complaint referred to the disciplinary authority of the concerned Bar Council.
Decisions of Supreme Court in relation to legal profession:
32. The role of Bar Council to preserve the purity and dignity of legal profession was indicated by the Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702. The Supreme Court observed that the role of Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics.
“30. The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the Disciplinary Committee of the Bar Council of India is according to the State Bar Council such as will lower the standards and imperil the high traditions and values in the profession, the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar.”
33. The Supreme Court in Bar Assn. v. Union of India, (1998) 4 SCC 409, indicated the exclusive jurisdiction of Bar Council to suspend the licence to practice.
“71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-5-1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practise as an advocate vests exclusively in the Bar Council of the State concerned, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.”
34. Mr Justice V.R. Krishna Iyer in His Lordship’s concurring judgement in M.V. Dabholkar observed:
“52. The Bar is not a private guild, like that of ‘barbers, butchers and candlestick-makers’ but, by bold contrast, a public institution committed to public justice and pro bono publico service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice.”
35. In M.V. Dabholkar, while interpreting the word “person aggrieved” the Supreme Court observed.
“31. The Bar Council is ‘a person aggrieved’ for these reasons. First, the words ‘person aggrieved’ in the Act are of wide import in the context of the purpose and provisions of the statute. In disciplinary proceedings before the Disciplinary Committee there is no Us and there are no parties. Therefore, the word ‘person’ will embrace the Bar Council which represents the Bar of the State. Second, the Bar Council is ‘a person aggrieved’ because it represents the collective conscience of the standards of professional conduct and etiquette. The Bar Council acts as the protector of the purity and dignity of the profession. Third, 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. Once an inquiry starts, the Bar Council has no control over its decision. The Bar Council may entrust it to another Disciplinary Committee or the Bar Council may make a report to the Bar Council of India. This indicates that the Bar Council is all the time interested in the proceedings for the vindication of discipline, dignity and decorum of the profession. Fourth, a decision of a Disciplinary Committee can only be corrected by appeals as provided under the Act. When the Bar Council initiates proceedings by referring cases of misconduct to Disciplinary Committee, the Bar Council in the performance of its functions under the Act is interested in the ‘task of seeing that the advocates’ maintain the proper standards and etiquette of the profession. Fifth, the Bar Council is vitally’ concerned with the decision in the context of the functions of the Bar Council. The Bar Council will have a grievance if the decision prejudices the maintenance of standards of professional conduct and ethics.”
36. In Bar Council of Maharashtra v. M.V. Dabholkar, (1976) 2 SCC 291 Mr. Justice V.R. Krishna Iyer, speaking for the four judges Bench observed:
“15. Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice – social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right.”
37. The Supreme Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106, while expressing the hope that Bar Council will sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society observed:
“333. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people.” 38. The Supreme Court in R.K. Anand recognised the power of courts to prohibit an Advocate convicted of criminal contempt, from appearing in Court for a specified period. The Supreme Court held:
“238 We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court’s record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an ‘inconvenient’ court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge.
239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor’s conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any court’s functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time.”
Note of caution – Interim suspension should be in rarest of rare cases.
39. The power to suspend the Advocate pending initiation and disposal of disciplinary proceedings must be in larger public interest. There should be an overwhelming public interest in such cases. The Bar Council must arrive at a clear finding that permitting the Advocate who is accused of a grave misconduct, pending disciplinary proceedings would seriously affect the dignity and decorum of the profession. The order should contain adequate materials justified such suspension. The interim suspension must be an exceptional action on account of the exigency of situation and gravity of the misconduct. There should be primary materials warranting such extreme action. It should not be as a matter of course. The interim suspension should therefore be in rarest of rare cases. The Bar Council in such cases must ensure disposal of disciplinary proceedings within the statutory period. The prolonged suspension without showing any progress in the disciplinary proceedings would give a cause of action to the Advocate to challenge the action.
40. The next question is whether the allegations against the petitioner would be sufficient to suspend him temporarily pending disposal of the disciplinary proceedings.
41. The proceedings of the meeting of the Bar Council of Tamil Nadu and Puducherry held on 5 October 2013 contain the basic materials constituting the grave charges and the circumstances under which the Bar Council has taken a decision to restrain five Advocates including the petitioner from practising the profession of law till the disposal of suo motu disciplinary proceedings initiated against them.
42. The string of materials available on record would make the position very clear that the petitioner along with other Advocates indulged in illegal and unethical practices and their actions tarnished the image of this noble profession. Those materials are sufficient to pass an order of interim suspension pending disposal of disciplinary proceedings for misconduct. The disciplinary committee must take earnest efforts to dispose of the suo motu disciplinary proceedings, as expeditiously as possible, uninfluenced by the above observation based on tentative findings and prima facie case.
Conclusion:
43. Therefore I hold that the power of Bar Council to revoke the licence to practice permanently or suspend it for a fixed term would include the incidental power of interim suspension pending disposal of disciplinary proceedings for misconduct.
44. In the upshot, I dismiss the writ petition. Consequently, the connected MP is closed. No costs.
Daksha Legal 