2.This is a classic case where the political parties and the Police authorities have tried to misuse their power to bury the truth in respect of an unnatural death of one Yogishgouda goudar.
These writ petitions are filed by the accused persons stated supra under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, praying for a writ in the nature of certiorari to quash the Government Order dated 6.9.2019 made in HD 48 PCB 2016 as per Annexure-A, according sanction to the Central Bureau of Investigation (‘CBI’ for short), under Section – 6 of Delhi Special Police Establishment Act, 1946, to conduct further investigation with respect to Crime No.135/2016, registered with the Dharwad Sub-Urban Police Station, Dharwad for the offence punishable under Section 302 of IPC and writ in the nature of certiorari to quash the FIR dated 24.6.2019
In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these writ petitions are:
i) Whether the petitioners – Accused Nos.1,5,15,16 and 21, in these writ petitions have made out a case to quash the impugned Government Order bearing No.HD 48 PCB 2016, Bengaluru, dated 6.9.2019, by which sanction has been accorded to the Central Bureau of Investigation, under Section (6) of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No.135/2016 under Section 302 of IPC
ii) Whether the Investigating Officer of the 2nd respondent/CBI is empowered to proceed with the investigation, in view of the interim order passed by the Hon’ble Supreme Court dated 20.2.2020 in SLP (Criminal) No.1348/2020 (from 20.2.2000 to 11.8.2021) staying the operation of the order passed by the learned Single Judge of this Court dated 21.11.2019 made in W.P. No.51012/2019, in the peculiar facts and circumstances of the present case ?
Considering the entire material on record and taking into consideration the opinion expressed by the learned Advocate General of Government of Karnataka and considering the provisions of Sections 156 and 173(8) of Criminal Procedure Code, Government was satisfied that the further investigation of Crime No.135/2016 of IPC of Dharwad Sub-Urban Police Station, Dharwad was needed to be handed over to CBI, in order to meet the ends of justice. Accordingly, by the impugned Government Order dated 6.9.2019, sanction has been accorded to the CBI, under Section 6 of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No.135/2016 of Dharwad Sub-Urban Police Station, Dharwad. The same was issued by order and in the name of the Governor of Karnataka after applying its mind and taking into consideration the peculiar facts and circumstances of the present case. Accordingly, the FIR came to be registered on 24.9.2019 as per Annexure-B. In these writ petitions, the petitioners have sought for writ in the nature of certiorari for quashing the Government Order dated 6.9.2019 and the FIR dated 24.9.2019.
94.It is high time for the judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed. This Court being the protector of the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly.
Keeping in mind the aforesaid principles, it is relevant to consider at this stage whether the State Government is justified in entrusting the matter to the CBI in pursuance of the impugned Government Order dated 6.9.2019, in view of the representation made by the kith and kin of the deceased. A careful perusal of the records which culminated into passing of the impugned Government Order dated 6.9.2019 clearly indicates that the State Government was aware of the fact that the complainant had earlier approached this Court requesting to hand over the case to the CBI and this Court has dismissed the said writ petition. After considering the entire material on record, the State Government was of the opinion that the matter has to be entrusted to the CBI for further investigation, which is an independent authority and there is no bar for the State Government to exercise its sovereign power to entrust the matter to the CBI
The material on record depicts that the Public Prosecutor, who was in-charge of the crime was changed during trial. The material also revealed that during the course of further investigation by CBI, it has come to light that some of the Police officials including previous Investigating Officer are also found to be involved in the case, were found to have taken gratification to scuttle the investigation and they have been arrayed as Accused Nos.19 and 20.
Admittedly, in the present case the State Government by the impugned Government Order has granted its consent and accordingly, the Central Government also ordered for the extension of the provisions of the DSPE Act by issuing a notification. Therefore, the order passed by the State Government entrusting the matter to CBI for further investigation, is in accordance with law.
In the present case, the allegations made in the first information report, prima facie constitute cognizable offence and make out a case against the accused persons. After investigation, the Investigating Officer of the 2nd respondent/CBI filed supplementary charge sheets and the competent Court took cognizance of the supplementary charge sheets and the matter is committed to the court of Sessions. The accused persons have not made out an express legal bar engrafted in any of the provisions of the Code to the institution and continuance of the proceedings in Crime No.135/2016. The accused persons have also not made out that a criminal proceeding is manifestly attended with mala fide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.. It is not in dispute that separation of powers is a part of the basic structure of the Constitution, the “ordinary” executive power of the State Government under Section 6 and ‘extraordinary judicial power’ of the constitutional courts are mutually exclusive and are not interdependent and there is no particular form to give consent under Section 6 of Delhi Special Police Establishment Act
The parameters for exercise of both the distinct powers of Government and Courts are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under section 6 of the Delhi Special Police Establishment Act, 1946 in granting consent and the Central Government can, thereafter exercise its power by accepting the investigation entrusted to it by the State Government.
It is well settled that the accused/petitioners ares not entitled to say what agency investigates him. The investigation by CBI is permissible even after filing of charge sheet by the local police
In the light of the law laid down by the Hon’ble Supreme Court in the aforesaid judgments, the contention of learned counsel for the petitioners that the impugned Government Order issued by the State Government for re-investigation, cannot be accepted and infact the impugned Government Order has been issued for ‘further investigation’ only.
It is relevant to quote the words from the case of JENNISON -vs- BAKER reported in 1972(1) All.ER.997, wherein it is held that:
“the law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope”
It is well settled that the trial should not be victim centric, forgetting the valuable rights available to the accused, but, when the relevant material becomes available in accordance with law before the trial Court, the accused cannot be heard to say that the same cannot be looked into for a fair trial. The administering criminal justice is a two-end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. Therefore, it becomes clear that a fair trial envisages production of all relevant material before the trial Court for discovering the truth of the matter. It is not as if the petitioners/accused persons would be put to any prejudice if two supplementary charge sheets and the additional documents are examined by the Sessions Court in the present case and the witnesses relevant to such documents are permitted to be examined.
It is well settled that, if a prima facie case is made out, disclosing the ingredients of the offences as alleged against the accused, the Court cannot quash the criminal proceedings as admittedly in the present case, when the trial is half way charge sheets are filed by impleading the new accused persons, cognizance of the offences already taken by the competent Court and now the matter is being posted for further trial.
The tone for this judgment may be set by quoting what Richard Brinsley Sheridan, an acclaimed Irish dramatist of 18th century, on being asked by his tailor for at least the interest of his bill had retorted:
“It is not my interest to pay the principal, nor my principle to pay the interest”.
Petitioner Assessee inter alia engaged in the business of manufacture of computer software & providing IT enabled services, is knocking at the doors of Writ Court for assailing the order dated 29.03.2019, a copy whereof is at Annexure-A whereby the second respondent-DCIT having negatived its application dated 22.03.2019 filed u/s 244A(1A) of the Income Tax Act, 1961 (hereafter ‘1961 Act’) has denied additional 3% interest on the allegedly delayed refund of amount relatable to Assessment Year 2008-09.
I. Some legal principles & morals which are to animate levy of tax and refund of un-taxable:
(i) A great Indian poet Kalidasa (500 CE) in his epic poem “Raghuvamsham” (1-18) states: “The King Dilip collects from his subjects only 1/6th of their income as tax for the welfare of State, indeed like the sun taking earthly water drops, only to indemnify her with multiples of rain-drops…” Chanakya in his acclaimed work “Arthashastr” advises the Rulers: “Collect taxes from the citizens as honeybees collect nectar from the flowers, gently and without inflicting pain…”;
(ii) A renowned jurist of yester-decades late Mr. Nani Palkhivala, in the concluding paragraph of Preface to the Eighth Edition of “The Law and Practice of Income Tax” said “Every Government has a right to levy taxes. But no Government has the right, in the process of extracting tax, to cause misery and harassment to the taxpayer and the gnawing feeling that he is made the victim of palpable injustice.”; the function of the Assessing Officer is to administer the statute with solicitude for the Public Exchequer with an inbuilt idea of fairness to tax payers; this view finds expression in the decision of the Apex Court in ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd. (2007) 291 ITR 500 (SC).
(iii) Walton J. had observed in Vestey v. Inland Revenue Commissioners [1979] Ch 177 (197 – 198) “I conceive it to be in the national interest, in the interest not only of all individual tax payers – which includes most of the nation – but also in the interests of the Revenue authorities themselves, that the tax system should be fair… One should be taxed by law, and not be untaxed by concession … A tax system which enshrines obvious injustices is brought into disrepute with all tax-payers accordingly, whereas one in which injustices, when discovered, are put right (and with retrospective effect when necessary) will command respect and support…”.
(iv) A Welfare State like ours is constitutionally expected to be fair & reasonable in dealing with the subjects and it must avoid any harassment to the assessee public, without causing any loss to the Exchequer (see Nokia Corporation v. Director of Income-tax [2007] 292 ITR 22 (Delhi HC); the State as constitutionally ordained, needs to conduct itself as a virtuous litigant and should meet honest claims; this view finds resonance in the decision of the Apex Court in State of U.P. v. Manohar [2005] 2 SCC 126; the maxim actus curiae neminem gravabit, i.e., an act of court shall prejudice none, is equally applicable to the quasi- judicial functions of Tax Authorities, as well.
(v) Article 265 of the Constitution of India mandates that no tax shall be levied or collected except by authority of law; if a tax has been paid in excess of the tax specified, the same has to be refunded; in Tata Chemicals 363 ITR 658 (SC), the Apex Court reasoned out why State should pay interest for holding tax payers’ money; a “tax refund” is a refund of taxes when the tax liability is less than the tax paid; when the said amount is refunded, it should carry interest as a matter of course, since it is a kind of recompense for the ‘unauthorized use or retention’ of money; refund due & payable to an assessee is a debt owed; Parliament has enacted this principle in Section 244A of the 1961 Act; in Aluminium Corporation of India Ltd. v UOI 1978 (2) ELT 452 (SC) the Apex Court observed that a good government involves not only diligent collection of taxes, but also ready refunds of excess levies.
VII. Payment of interest on delayed refunds u/s. 244A(1A):
(i) This provision has been brought on the statute book vide Finance Act, 2016 w.e.f. 01.06.2016; entitlement of an assessee to the interest on delayed refund as envisaged under this provision to some extent brings a sort of parity in the converse situation where he is liable to pay interest for delayed payment of taxes in terms of section 234B; it may be pertinent to note that it was inserted and brought into effect from the same time as section 153 was substituted by Finance Act, 2016; similarly, section 153(5) was substituted by Finance Act, 2016 prescribing the time limit to give effect to the orders passed under the sections mentioned therein, wholly or partly, otherwise than by making a fresh assessment or reassessment; prior to such amendment, no time limit was prescribed for passing of OGE; it may be noted that the requirement of paying interest u/s 244A(1A) has been brought in for the cases covered u/s 153(5).
(ii) The legislative intention in enacting section 244A(1A) can be discerned from the Memorandum explaining the provisions of the Finance Bill, 2016
(iii) Interest u/s 244A(1A) would not accrue in cases of fresh assessment or reassessment; use of words ‘wholly or partly’ therein would again indicate that the bar of interest accrual is confined only to that part of the assessment that are occasioned by remittance/remand and would not extend to other concluded issues that give rise to refund u/s 153(5); employment of identical language in section 153(5) and section 244(1A) too supports this analogy; it is clear that section 244A(1A) would apply to cases covered u/s 153(5); thus where, in respect of certain issues, order giving effect to be passed u/s 153(5), otherwise than by making a fresh assessment or reassessment is passed beyond the prescribed time-limit, interest u/s 244A(1A) has to be granted in respect of refund arising on such issues that are concluded and that the pendency of consideration on remitted issues does not interdict the statutory accrual of interest; an argument to the contrary cannot be countenanced without straining the text & context of the provision.
(iii) The vehement contention of the Revenue essentially structured on the text of section 4 of the 1961 Act that any order giving effect to the order of the ITAT will result in re- determination of the assessee’s total income and therefore will constitute a fresh assessment, if accepted, would inexorably lead to the result that the Revenue can invariably retain the refund determined, without the liability to pay the additional interest in terms of Sec.244A(1A) for the delayed period; that would also lead to an absurd conclusion that every OGE has to be considered as a fresh assessment or reassessment and therefore would be outside the purview of Sec.153(5) and consequently any delay in granting actual refund would also be outside the ambit of Sec.244A(1A); this would defeat the very object for which this provision has been brought on the statute book.
i) A Writ of Certiorari issues quashing the impugned order; petitioner-Assessee is permitted to submit the fresh claim for additional interest at the rate of 3% per annum for the period envisaged in section 153(5) r/w section 244A(1A), within eight weeks.
ii) A Writ of Mandamus issues to the respondents to compute the interest amount till date and pay it to the petitioner- Assessee within eight weeks next following.
iii) If delay is brooked in complying the above direction, the Revenue shall pay to the petitioner – Assessee an extra interest, at the rate of 1.5 % per month and this amount, after payment, may be recovered personally from the erring officials of the Department.
During Dussera vacation, I was reading Justice D.S.Tewatia’s autobiography “A Journey Less Travelled”. Justice Tewatia writes about an interesting event which would have affected the career of Justice V.S. Malimath as Chief Justice of Karnataka High Court.
Before going to the issue, let me say few words about these two judges in brief.
Justice Dr. Justice V.S. Malimath is certainly one of the finest judges this country has seen. He was born on 12 June 1929. He secured First Rank in LL.B. and a post graduate diploma in Public International Law from University of London in 1952. He commenced practice in the High Court of Bombay in 1952 and shifted to Bangalore on 1 November 1956. Appointed Advocate General in 1968. Appointed Judge of the High Court of Karnataka on 5 March 1970 and Chief Justice on 6 February 1984. Transferred to Kerala as Chief Justice on 24 October 1985. After retirement was Chairman of the Central Administrative Tribunal, and then Member of the National Human Rights Commission. Headed the Committee on Reform of Criminal Justice System in India. Was the U.N. Representative to monitor human rights enforcement in Nigeria and Sri Lanka. And was an International Observer to oversee the Referendum in Sri Lanka. Perhaps one of the biggest contributions from Justice V.S. Malimath is his recommendations on reforms in the criminal justice system.
Justice D.S.Tewatia was born on 1 June 1930. After Collegiate Education in India, he was called to the Bar from Lincoln’s Inn. Enrolled as an Advocate in the High Court of Punjab on 25 November 1955. Appointed as Advocate General of Haryana. Appointed as Additional Judge of Punjab and Haryana High Court on 6 February 1970 and Permanent Judge from 20 April 1971. During emergency, he was transferred to the High Court of Karnataka from 28 June 1976. Transferred back to Chandigarh on 19 July 1977. Was Chief Justice of Punjab and Haryana High Court from 15 October 1987 to 29 October 1987. Was appointed as Chief Justice of the Calcutta High Court on 3 November 1987 and he demitted office on 2 May 1988.
Justice G.K. Govinda Bhat was Chief Justice of Karnataka High Court from 7 June 1973 to 14 December 1977. Justice D.M. Chandrashekar was Chief Justice of Karnataka from 22 March 1978 to 25 September 1982. Justice Bhimaiah was Chief Justice of Karnataka High Court from 28 October 1982 to 10 April 1983. After Justice Bhimiah, in normal course, Justice V.S. Malimath was in line for Chief Justice. But since Justice Tewatia was transferred to Karnataka High Court, he became the senior-most judge after the Chief Justice.
Justice Tewatia wanted to go back to Punjab and Haryana. At this juncture, Justice Tewatia writes in his autobiography how he was pressurised to stay back so that he could be the Chief Justice of Karnataka High Court for next 9 to 10 years. Justice Tewatia writes; “Chief Justice Govind Bhat did not like the idea of my going back to Punjab and Haryana High Court. He told me that it was also the consensus view of the Bar members. He told my wife that he would sit Dharna at our house, if we thought of leaving Karnataka High Court. He asked me as to what was the problem? That you are so senior that you will remain Chief Justice of Karnataka High Court for almost 9/10 years and yet you are leaving this Court.‘ Chief Justice Bhat nursed this regret as is apparent from his letter dated 20:12:1982 wherein he writes: ‘Mr. Justice Bhimayya is the present Chief Justice of Karnataka and he is retiring in May 1983. (I was to succeed him, if I had decided to stay on as Judge of Karnataka High Court). It is talked that some one from outside the State will succeed him as CJ. I wish you had continued in Bangalore. That is what several Advocates express even now.”
However, Justice Tewatia stuck to his decision and opted for transfer to Punjab and Haryana High Court.
When this letter was written, Justice G.K. Govind Bhat had already retired on 14 December 1977 and Justice Tewatia was Judge in Punjab and Haryana High Court.
Justice V.S. Malmath thus became the Chief Justice of Karnataka High Court after Justice Bhimaiah and continued to be so till he was transferred to Kerala High Court on 24 October 1985.
Justice Tewatia continues “Justice Venkataramaiah, who was 4 steps junior and Justice Venkatachalaiah who was almost 8 steps junior to me both, retired as Chief Justices of India”
Needless to say, this applies to Justice V.S. Malimath also. He would certainly have been the greatest asset to Supreme Court. I am told Justice V.S.Malimath declined the much delayed offer for his elevation to Supreme Court.
This writeup has absolutely no insinuation of deciphering the intentions behind the events which unfolded then or suggesting to correct any historical injustice.
Judgment of Shri M Manoj, Addl Sessions Judge, Kollam in Uttara murder case. A classic and must read judgment for law professionals and law students. Judgment having 452 pages with 369 paragraphs dealing with 286 documents for the prosecution (Exhibits P1 to P286), 24 documents for the defence (Exhibits D1 to D24), 87 witnesses for the prosecution (PW1 to PW87), 3 defence witnesses (PW1 to PW3) and 40 Material Objects
A Laborious, intensive and meticulous work of judgment in an alleged crime done with techniques and tools so far unheard of and perplexing dimensions.
ನಟ ಶ್ರೀ. ಅನ0ತನಾಗ್ ನಟಿಸಿದ ‘ಗೋದಿ ಬಣ್ಣ ಸಾದಾರಣ ಮೈಕಟ್ಟು‘ ಚಿತ್ರ ವೃದ್ಯಾಪ್ಯದಲ್ಲಿ ಅಲ್ಜೈಮರ್ ಖಾಯಿಲೆಯಿ0ದ ಬಳಲುವ ವ್ಯಕ್ತಿಗಳ ಜೀವನವನ್ನು ಅತ್ಯ0ತ ಮಾರ್ಮಿಕವಾಗಿ ವಿವರಿಸುತ್ತದೆ.
ಅಲ್ಜೈಮರ್ ಒ0ದು ಮೆದುಳಿನ ಅಸ್ವಸ್ಥತೆಯಾಗಿದ್ದು ಅದು ನಿಧಾನವಾಗಿ ಜ್ನಾಪನೆ ಮತ್ತು ಆಲೋಚನಾ ಕೌಶಲ್ಯವನ್ನು ನಾಶಪಡಿಸುತ್ತದೆ ಮತ್ತು ಅಂತಿಮವಾಗಿ, ಸರಳವಾದ ಕಾರ್ಯಗಳನ್ನು ನಿರ್ವಹಿಸುವ ಸಾಮರ್ಥ್ಯವನ್ನೂ ಕಳೆಯುತ್ತದೆ.
ಈ ಖಾಯಿಲೆ ವಯಸ್ಸಾದವರಲ್ಲಿ ಬುದ್ಧಿಮಾಂದ್ಯತೆಗೆ ಅತ್ಯಂತ ಸಾಮಾನ್ಯ ಕಾರಣವಾಗಿದೆ. ಆಲೋಚನೆ, ನೆನಪಿನ ಶಕ್ತಿ, ತಾರ್ಕಿಕತೆ, ದೈನಂದಿನ ಜೀವನ ಮತ್ತು ಚಟುವಟಿಕೆಗಳಿಗೆ ಈ ಖಾಯಿಲೆ ಅಡ್ಡಿಪಡಿಸುತ್ತದೆ. ಅತ್ಯಂತ ತೀವ್ರವಾದ ಹಂತಕ್ಕೆ ಈ ಖಾಯಿಲೆ ತಲುಪಿದಾಗ, ವ್ಯಕ್ತಿಯು ದೈನಂದಿನ ಜೀವನದ ಮೂಲ ಚಟುವಟಿಕೆಗಳಲ್ಲಿ ಸಹಾಯಕ್ಕಾಗಿ ಸಂಪೂರ್ಣವಾಗಿ ಇತರರನ್ನು ಅವಲಂಬಿಸಬೇಕು.
ಒ0ದು ದಿನ ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ಬೆಳಗಿನ ವ್ಯಾಯಾಮನಡಿಗೆ ಮುಗಿಸಿ ಮನೆಗೆ ಹಿ0ತಿರುಗಿದಾಗ ಅವರ ಶ್ರೀಮತಿ, ಮನೆ ಮು0ದೆ ರಸ್ತೆ ಮದ್ಯೆದಲ್ಲಿ ನಿ0ತ ವ್ಯಕ್ತಿಯೊಬ್ಬರನ್ನು ತೋರಿಸಿ ‘ಅವರು ಕಳೆದ ಹತ್ತು ನಿಮಿಷದಿ0ದಲೂ ರಸ್ತೆ ಮದ್ಯೆ ನಿ0ತಿದ್ದಾರೆ ವಾಹನಗಳು ಅವರ ಎಡಬಲದಲ್ಲಿ ಹಾದು ಹೋಗುತ್ತಿದ್ದರೂ ಅವರಿಗೆ ಅರಿವಿಲ್ಲ’ ಎ0ದು ತಿಳಿಸಿದರು.
ತಕ್ಷಣವೇ ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ತಮ್ಮ ಗನ್ ಮ್ಯಾನ್ ಹಾಗೂ ಚಾಲಕನ ಜೊತೆ ಆ ವೃದ್ದರನ್ನು ಕಾರಿನಲ್ಲಿ ಕೂರಿಸಿಕೊ0ಡು ಅಕ್ಕ ಪಕ್ಕದ ರಸ್ತೆಗಳಲ್ಲೆಲ್ಲಾ ವಿಚಾರಿಸಲು ಶುರುಮಾಡಿದರು. ಸುಮಾರು ಸಮಯದ ನ0ತರ ಒಬ್ಬ ರಸ್ತೆ ಬದಿ ವ್ಯಾಪಾರಿ, ಈ ವೃದ್ದರ ಗುರುತು ಹಿಡಿದು ಅವರು ಇರುವ ಮನೆಯ ಬಗ್ಗೆ ವಿವರ ತಿಳಿಸಿದರು.
ವೃದ್ದರನ್ನು ಅವರ ಮನೆಗೆ ಜೋಪಾನವಾಗಿ ಸೇರಿಸಿದ ಈ ಘಟನೆಯ ವಿವರವನ್ನು ಕಳೆದ ವಾರ ಕರ್ನಾಟಕ ರಾಜ್ಯ ಕಾನೂನು ನೆರವು ಕೇ0ದ್ರದ ಸಭೆಯಲ್ಲಿ ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ಹ0ಚಿಕೊ0ಡರು.
ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ಇವರು ಕರ್ನಾಟಕ ರಾಜ್ಯ ಕಾನೂನು ನೆರವು ಕೇ0ದ್ರದ ಮುಖಾ0ತರ ಸಮಾಜಕ್ಕೆ ನೀಡಿದ ಕೊಡುಗೆ ಅಪಾರ. ಅತ್ಯ0ತ ಕಡುಬಡವರು, ಬೀದಿ ವ್ಯಾಪಾರಿಗಳ ಹಾಗೂ ಕಟ್ಟಡ ಕೆಲಸಗಾರರ ಮಕ್ಕಳು, ಅವಿದ್ಯಾವ0ತರು, ಬಡ ರೈತರು ಇವರುಗಳ ಹಕ್ಕುಗಳನ್ನು ಅವರಿಗೆ ವಿವರಿಸಿ, ಅವರ ಜೀವನವನ್ನು ಉತ್ತಮ ಪಡಿಸುವ ಕೆಲಸದಲ್ಲಿ ಅತ್ಯ0ತ ಮಹತ್ತರ ಪಾತ್ರ ವಹಿಸಿದ ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ಗುಜರಾತ್ ಉಚ್ಚನ್ಯಾಯಾಲಯದ ಮುಖ್ಯ ನ್ಯಾಯಾದೀಶರಾಗಿ ನೇಮಕಗೊ0ಡಿರುವುದು ಸ0ತಸದ ವಿಶಯ. ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ತಮ್ಮ ಸಾಮಾಜಿಕ ಕಳಕಳೆಯನ್ನು ಜೀವನದ ಉದ್ದಕ್ಕೂ ಮು0ದುವರೆಸಿಕೊ0ಡು ಹೋಗುವುದು ಖ0ಡಿತ.
ನ್ಯಾಯಮೂರ್ತಿ ಅರವಿ0ದ್ ಕುಮಾರ್ ಕರ್ನಾಟಕದ ಎಲ್ಲ ವಕೀಲರ ಪರವಾಗಿ ಶುಭ ಹಾರೈಕೆ.
ನವದೆಹಲಿ: ಕರೋನವೈರಸ್ ಸಾಂಕ್ರಾಮಿಕ ರೋಗಕ್ಕೆ ಪ್ರತಿಕ್ರಿಯಿಸಿದಂತೆ ಬೇರೆ ಯಾವ ದೇಶವೂ ಭಾರತದಷ್ಟು ಸಾದನೆ ಮಾಡಲು ಸಾಧ್ಯವಾಗಲಿಲ್ಲ ಎ0ದು ಸುಪ್ರೀಂ ಕೋರ್ಟ್ ಗುರುವಾರ ಸರ್ಕಾರಕ್ಕೆ ಭಾರೀ ಪ್ರಶಂಸೆ ವ್ಯಕ್ತಪಡಿಸಿದೆ.
ಕೋವಿಡ್ ನಿ0ದ ಸತ್ತವರಿಗೆ ರೂ 50,000 ಪರಿಹಾರವನ್ನು ನೀಡುವ ಪ್ರಕರಣದ ಆದೇಶವನ್ನು ನ್ಯಾಯಲಯ ಕಾಯ್ದಿರಿಸಿದೆ. “ಇಂದು ನಾವು ತುಂಬಾ ಸಂತೋಷವಾಗಿದ್ದೇವೆ. ತೊಂದರೆ ಅನುಭವಿಸಿದ ವ್ಯಕ್ತಿಗಳಿಗೆ ಸ್ವಲ್ಪ ಸಾಂತ್ವನ ಸಿಗುತ್ತದೆ … ಸರ್ಕಾರ ನಡೆಸುತ್ತಿರುವ ಎಲ್ಲವು ಎರಡನೇ ತರಂಗಕ್ಕೆ ಸಿದ್ಧತೆಯ ಕೊರತೆ ಮತ್ತು ವೈದ್ಯಕೀಯ ಆಮ್ಲಜನಕದಂತಹ ಅಗತ್ಯತೆಗಳ ಕೊರತೆಯಿಂದಾಗಿ ಸಾವಿರಾರು ಸಾವುಗಳ ಮೇಲೆ ತೀವ್ರ ಪರಿಶೀಲನೆ ನಡೆಸಿದ ಕರೋನವೈರಸ್ ಸಾಂಕ್ರಾಮಿಕ ರೋಗಕ್ಕೆ ಭಾರತದ ಪ್ರತಿಕ್ರಿಯೆಯನ್ನು ನ್ಯಾಯಮೂರ್ತಿಗಳಾದ ಶಾ ಮತ್ತು ಎಎಸ್ ಬೋಪಣ್ಣ ಮೆಚ್ಚಿದ್ದಾರೆ.
“ನಮ್ಮ ಜನಸಂಖ್ಯೆಯ ಗಾತ್ರ, ಲಸಿಕೆ ವೆಚ್ಚಗಳು, ಆರ್ಥಿಕ ಪರಿಸ್ಥಿತಿ ಮತ್ತು ನಾವು ಎದುರಿಸಿದ ಪ್ರತಿಕೂಲ ಸನ್ನಿವೇಶಗಳನ್ನು ಗಮನಿಸಿದರೆ … ನಾವು ಅನುಕರಣೀಯ ಕ್ರಮಗಳನ್ನು ಕೈಗೊಂಡಿದ್ದೇವೆ … ಭಾರತ ಮಾಡಿದ್ದನ್ನು ಬೇರೆ ಯಾವ ದೇಶವೂ ಮಾಡಲು ಸಾಧ್ಯವಾಗಲಿಲ್ಲ” ಎಂದು ನ್ಯಾಯಾಧೀಶರು ಹೇಳಿದರು.
ರಾಷ್ಟ್ರೀಯ ವಿಪತ್ತು ನಿರ್ವಹಣಾ ಪ್ರಾಧಿಕಾರ (NDMA) ಕೋವಿಡ್ -19 ನಿಂದ ಮೃತಪಟ್ಟವರ ಕುಟುಂಬಕ್ಕೆ ₹ 50,000 ನೀಡಬೇಕೆಂದು ಶಿಫಾರಸು ಮಾಡಿದೆ ಎಂದು ಕೇಂದ್ರವು ಬುಧವಾರ ಸುಪ್ರೀಂ ಕೋರ್ಟ್ಗೆ ತಿಳಿಸಿದೆ.
ವೈರಸ್ನಿಂದ ಸಾವನ್ನಪ್ಪಿದ ಮತ್ತು ಕೋವಿಡ್ -19 ಪರಿಹಾರ ಕಾರ್ಯಾಚರಣೆ ಅಥವಾ ಸಾಂಕ್ರಾಮಿಕ ರೋಗವನ್ನು ಎದುರಿಸಲು ಸನ್ನದ್ಧತೆಗೆ ಸಂಬಂಧಿಸಿದ ಚಟುವಟಿಕೆಗಳಲ್ಲಿ ಭಾಗಿಯಾದವರ ಕುಟುಂಬಕ್ಕೆ ಪರಿಹಾರವನ್ನು ನೀಡಲಾಗುವುದು ಎಂದು ಅದು ಹೇಳಿದೆ. ಜೂನ್ 30 ರಂದು ನೀಡಲಾದ ಉನ್ನತ ನ್ಯಾಯಾಲಯದ ನಿರ್ದೇಶನಗಳನ್ನು ಅನುಸರಿಸಿ ಸೆಪ್ಟೆಂಬರ್ 11 ರಂದು ಎನ್ಡಿಎಂಎ ಮಾರ್ಗಸೂಚಿಗಳನ್ನು ಹೊರಡಿಸಿದೆ ಎಂದು ಸರ್ಕಾರ ಹೇಳಿದೆ, ಇದರಲ್ಲಿ ಹಣಕಾಸಿನ ಸಹಾಯಕ್ಕಾಗಿ ಮಾರ್ಗಸೂಚಿಗಳನ್ನು ಶಿಫಾರಸು ಮಾಡಲು ಪ್ರಾಧಿಕಾರಕ್ಕೆ ನಿರ್ದೇಶನ ನೀಡಿದೆ.
ಸಾಂಕ್ರಾಮಿಕ ರೋಗದ ಮೊದಲ ಮತ್ತು ಎರಡನೇ ತರಂಗದಲ್ಲಿ ಕೋವಿಡ್ -19 ಸಾವುಗಳಿಂದ ತೊಂದರೆಗೊಳಗಾದ ಕುಟುಂಬಗಳಿಗೆ ನೆರವು ಸೀಮಿತವಾಗಿರುವುದಿಲ್ಲ ಆದರೆ ಸಾಂಕ್ರಾಮಿಕ ರೋಗದ ಮುಂದಿನ ಹಂತಗಳಲ್ಲಿಯೂ ಮುಂದುವರಿಯುತ್ತದೆ ಎಂದು ಪ್ರಾಧಿಕಾರ ತಿಳಿಸಿದೆ.
ಪರಿಹಾರವನ್ನು ರಾಜ್ಯಗಳು ರಾಜ್ಯ ವಿಪತ್ತು ಪ್ರತಿಕ್ರಿಯೆ ನಿಧಿಯಿಂದ (SDRF) ಒದಗಿಸುತ್ತವೆ ಮತ್ತು ಎಲ್ಲಾ ದಾಖಲೆಗಳನ್ನು ಅಗತ್ಯ ದಾಖಲೆಗಳನ್ನು ಸಲ್ಲಿಸಿದ 30 ದಿನಗಳೊಳಗೆ ಇತ್ಯರ್ಥಗೊಳಿಸಲಾಗುತ್ತದೆ ಮತ್ತು ಆಧಾರ್ ಲಿಂಕ್ಡ್ ಡೈರೆಕ್ಟ್ ಬೆನಿಫಿಟ್ ಟ್ರಾನ್ಸ್ಫರ್ ಪ್ರಕ್ರಿಯೆಗಳ ಮೂಲಕ ವಿತರಿಸಲಾಗುತ್ತದೆ.
ಕೋವಿಡ್ -19 ಸಂತ್ರಸ್ತರ ಕುಟುಂಬ ಸದಸ್ಯರಿಗೆ ಪರಿಹಾರವನ್ನು ಕೋರಿ ವಕೀಲರಾದ ಗೌರವ್ ಬನ್ಸಾಲ್ ಮತ್ತು ವಕೀಲ ಸುಮೀರ್ ಸೋಧಿ ಪ್ರತಿನಿಧಿಸಿದ ಮಧ್ಯಸ್ಥಿಕೆದಾರರು ಸಲ್ಲಿಸಿದ ಮನವಿಗಳ ಮೇಲೆ ಕೇಂದ್ರದ ಪ್ರತಿಕ್ರಿಯೆ ಬಂದಿತು.
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
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.
Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 17.12.2018 passed by the High Court of Karnataka at Bengaluru in Writ Petition No.5609/2017 by which the High Court has allowed the said Writ Petition preferred by the respondent herein and has quashed and set aside the order dated 09.12.2015 passed by the Karnataka State Administrative Tribunal, Bengaluru in Application No.6396 of 2015 and consequently has directed the appellants herein to consider the application of the respondent herein – original writ petitioner (hereinafter referred to as ‘original petitioner’) for grant of compassionate appointment, the original respondent has preferred the present appeal.
8.1 From the aforesaid rules it can be seen that only ‘unmarried daughter’ and ‘widowed daughter’ who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include ‘divorced daughter’ as eligible for appointment on compassionate ground and even as ‘dependent’. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word ‘divorced daughter’ has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the ‘divorced daughter’ were not eligible for appointment on compassionate ground and the ‘divorced daughter’ was not within the definition of ‘dependent.’
8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13Bof the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained.
9. In view of the above and for the reasons stated above, the appeal succeeds. The impugned common judgment and order 17 passed by the High Court in Writ Petition No.5609/2017 is hereby quashed and set aside. The Writ Petition before the High Court is dismissed accordingly. However, there shall be no order as to costs.
Six judges of the Karnataka High Court are sworn in as permanent judges pursuant to their appointment as such by the President of India under Article 217 of the Constitution of India. Hon’ble Mr. Justice Satish Chandra Sharma, acting Chief Justice of the Karnataka High Court administered the oath of office today 8 September 2021. The Hon’ble Judges who are sworn-in today are;
1) Justice N.S. Sanjay Gowda.
2) Justice Jyothi Mulimani
3) Justice Rangasway Nataraj
4) Justice Hemant Chandangoudar
5) Justice Pradeep Singh Yerur
6) Justice Maheshan Nagaprasanna.
Justice N.S. Sanjay Gowda
Justice Jyoti Mulimani
Justice Rangaswamy Nataraj
Justice Hemnt Chandangoudar
Justice Pradeep Singh yerur
Justice Maheshan Nagaprasanna
Justice N.S. Sanjay Gowda. Born on 15.02.1967. Enrolled as an Advocate on 31.08.1989. Appointed as Additional Judge of the High Court of Karnataka and taken oath on 11.11.2019.
Justice Jyoti Mulimani. Born on 15.08.1968. Enrolled as an Advocate on 31.07.1992.Handled all types of Civil Cases. Hindu Law, Probate, Company, Arbitration. Constitutional, Tax & Tariff. Electricity, Education, Service, Motor Vehicles, and Excise matters.Served as a Mediator and Trainer in Bengaluru Mediation Centre for 12 years. Appointed as Additional Judge of the High Court of Karnataka and taken oath on 11.11.2019.
Justice Rangaswamy Nataraj. Born on 14.03.1970. Enrolled as an Advocate on 08.09.1992. Appointed as Additional Judge of the High Court of Karnataka and taken oath on 11.11.2019.
Justice Hemant Chandangoudar. Born on 28.09.1969. Enrolled as an Advocate on 11.02.1994. Appointed as Additional Judge of the High Court of Karnataka and taken oath on 11.11.2019.
Justice Pradeep Singh Yerur. Born on 21.06.1970. Enrolled as an Advocate on 30.05.1997. Practiced in the field of Constitutional law, Labour Laws, Company Laws, Intellectual Property, Penal Laws, Banking Laws, Negotiable Instrument Laws, Property Laws, Consumer Protection Laws, Service law, House Rent Laws, Family Laws, Land Acquisition, Economic Offence Laws, Education Law before High Court of Karnataka, Punjab and Haryana High Court and Supreme Court of India. Appointed as Additional Judge of the High Court of Karnataka and taken oath on 11.11.2019.
Justice Maheshan Nagaprasanna. Born on 23.03.1971. Appointed as Additional Judge of the High Court of Karnataka and taken oath on 26.11.2019.
(Profile as published on the website of High Court of Karnataka)
Daksha Legal 