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2019 DIGILAW 272 (MAD)

C. Sultan Sha v. Secretary, Bar Council of India

2019-01-28

K.K.SASIDHARAN, P.D.AUDIKESAVALU

body2019
ORDER : P.D. AUDIKESAVALU, J. 1. The Petitioner, who was an Advocate, has filed this Writ Petition for a direction to the Bar Council of India (hereinafter referred to as BCI) and the Bar Council of Tamil Nadu & Puducherry (hereinafter referred to as BCTN&P) to continue the proceedings of the case in D.C.C. No. 48 (sic 15) of 2018 by giving extension of time for a period of six months from 17.11.2018 for the disposal of the said case pending before the Disciplinary Committee of the BCTN&P. 2. The chronological sequence of events leading to the filing of this Writ Petition are given below:- (i) A complaint of deviant behavior by the Petitioner in proceedings dated 06.11.2015 in O.S. No. 8 of 2015 before the IV Additional District Court, Madurai was received by the BCTN&P from the Presiding Officer of that Court vide letter D. No. 45 of 2016 dated 11.01.2016 enclosing the copy of the order dated 04.01.2016 passed in M.C. No. 1 of 2015 in that regard. (ii) When a note dated 25.01.2016 was placed by the Secretary of the BCTN&P before the Chairman of the BCTN&P, an endorsement was made on 28.01.2016 to take suo motu complaint and initiate disciplinary proceedings. (iii) In pursuance thereof, show cause notice dated 17.02.2016 was sent by the Secretary, BCTN&P to the Petitioner along with the copy of the complaint together with enclosures to enable him to offer his comments within 15 days from the date of receipt of that communication, which was acknowledged by him. (iv) The Petitioner then submitted a reply dated 06.03.2016 along with enclosures, in support of his explanation for the aforesaid notice. (v) The complaint was thereafter placed before the Special Committee of the BCTN&P in its meeting held on 09.11.2017 and after referring to the facts of the complaint, resolution No. 214 of 2017 was passed as follows:- “It is resolved to place the matter before the Disciplinary Committee for detailed enquiry under Section 42 of the Advocates Act, 1961, on the suo motu complaint dated 25.01.2016 made against Mr. G. Sulthan Sha, Advocate, Madurai in Complaint No. 9 of 2016 as the allegations leveled in the complaint are so serious in nature and that too it was made by the Learned Judge of the IV Additional District Judge, Madurai.” (vi) The complaint against the Petitioner, which was assigned D.C.C. No. 15 of 2018 was taken on file and a notice of hearing dated 07.05.2018 was issued by the Registrar, Disciplinary Committee, BCTN&P to the Petitioner informing him that the complaint dated 25.01.2016 made against him has been referred to the Disciplinary Committee – V of the BCTN&P for disposal under Sections 35 and 36 of the Advocates Act, 1961, and that the hearing of the case has been fixed at 11.00 a.m. on 02.06.2018 at the premises of the BCTN&P at Chennai and the Petitioner was required to submit his statement of defence together with documents or affidavits in support thereof and appear in person or through Advocate on that date. (vii) The said notice of hearing, which was sent by Registered Post, was returned with postal endorsement “intimation served” on 11.05.2018 by the Postman. (viii) As the said notice had not been collected by the Petitioner as seen from the returned postal cover, during the hearing on 02.06.2018, the Disciplinary Committee recorded that the Petitioner was absent and that the notice sent was not been received in-spite of intimation given and in the interest of justice, fresh notice was ordered to be sent to him for the next hearing on 30.06.2018. (ix) Mr. C.M. Arumugam, Learned Counsel had entered appearance on behalf of the Petitioner on hearing on 30.06.2018 and received all documents forming part of the record and he was directed to file the statement of defence on or before 28.07.2018. (x) At the request of the Petitioner, extension of time to file his counter was granted during the hearings on 28.07.2018, 11.08.2018 and 25.08.2018. (xi) During the hearing on 08.09.2018, the Petitioner was absent and in the light of the representation made by his Advocate that his father had been indisposed and as he was admitted in hospital, the matter was adjourned to 16.10.2018, extending time to file his counter. (xii) The Petitioner and his Counsel were absent on 16.10.2018 and as he had not chosen to file his counter, the Registry of the BCTN&P had issued notice for the hearing on 03.11.2018. (xii) The Petitioner and his Counsel were absent on 16.10.2018 and as he had not chosen to file his counter, the Registry of the BCTN&P had issued notice for the hearing on 03.11.2018. (xiii) When the matter was called on 03.11.2018, the Petitioner and his Counsel were absent yet again and the notice issued to him had been returned with the postal endorsement “intimation given on 22.10.2018 and 25.10.2018” and as he was evading its receipt and he had not cared to file his counter despite several opportunities granted, he was called absent and set ex-parte and the matter was posted for orders. After the aforesaid order was passed at 11.30 a.m., the Petitioner appeared along with his Counsel at 12.30 p.m. and made a request to set aside the ex-parte order stating that he was coming from Madurai by car and was unable to reach the venue of the proceedings by 11.00 a.m. The Petitioner made an application at 2.40 p.m. on that day to set aside the ex-parte order and filed his counter with enclosures. Taking note of the same, the ex-parte order was set aside and the matter was posted for framing of charges on 17.11.2018. (xiv) At that stage, the Petitioner made a representation dated 07.11.2018 that though the case was taken on file on 17.11.2017, the proceedings had been commenced by the Disciplinary Committee only on 21.06.2018 and the delay so occasioned was not due to him, and as such, he requested to extend time by six months for proceeding with the said case pending before the Disciplinary Committee. (xv) In that backdrop, on the next day, viz., 08.11.2018, the present Writ Petition has been filed by the Petitioner seeking the aforesaid relief. 3. Heard Mr. C.M. Arumugam, Learned Counsel appearing on behalf of the Petitioner, Mr. Subash Babu, Learned Counsel appearing on behalf of the First Respondent, Mr. Niranjan S. Kumar, Learned Counsel appearing on behalf of the Second and Third Respondents and perused the materials placed on record, apart from the pleadings of the parties. 4. 3. Heard Mr. C.M. Arumugam, Learned Counsel appearing on behalf of the Petitioner, Mr. Subash Babu, Learned Counsel appearing on behalf of the First Respondent, Mr. Niranjan S. Kumar, Learned Counsel appearing on behalf of the Second and Third Respondents and perused the materials placed on record, apart from the pleadings of the parties. 4. It is submitted by the Learned Counsel appearing for the Petitioner that having regard to the fact that the Special Committee of the BCTN&P had on 09.11.2017 had resolved to place the complaint against the Petitioner before the Disciplinary Committee, in view of plain words of Section 36-B(1) of the Advocates Act, 1961, which stipulates a time limit of one year for the conclusion of the disciplinary proceedings from the date of initiation of the proceedings at the instance of the BCTN&P, such proceedings has to be transferred to the BCI on the expiry of that period on 09.11.2018. It is further pointed out that though the Special Committee had resolved to refer the matter to the Disciplinary Committee of the BCTN&P on 17.11.2017, the proceedings before the Disciplinary Committee commenced only on 21.06.2018 and for that period of delay, the Petitioner could not be blamed and in such circumstances, the Petitioner has moved this Writ Petition seeking extension of time for Disciplinary Committee of the BCTN&P by six months to conclude the disciplinary proceedings. 5. The Learned Counsel appearing for the BCTN&P submitted that as per the practice followed by the BCTN&P, the period of one year is computed from the date on which it was resolved by the BCTN&P to refer the matter to the Disciplinary Committee, which was 07.11.2017 in this case and hence, by the plain words used in Section 36-B(1) of the Advocates Act, 1961, the BCTN&P is obliged to transfer the proceedings to the BCI from 07.11.2018 onwards. 6. The question that arises for consideration is whether the words “the date of initiation of proceedings at the instance of the State Bar Council” occurring in Section 36-B(1) of the Advocates Act, 1961, would have to be literally taken without considering whether the decision taken in that regard has been communicated to the Advocate concerned against whom the complaint has been made? 7. 7. Before proceeding further, it would be necessary to extract Section 36-B(1) of the Advocates Act, 1961, which reads as follows:- “36-B. Disposal of disciplinary proceedings:- (1) The Disciplinary Committee of a State Bar Council shall dispose of the complaint received by it under Section 35 expeditiously and in each case the proceedings shall be concluded with a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-Section (2) of Section 36.” In juxtaposition to the aforesaid legal provision, reference may be made to Section 48-AA of the Advocates Act, 1961, which reads as follows:- “48-AA. Review:- The Bar Council of India or any of its Committees, other than its Disciplinary Committee, may of its own motion or otherwise review any order, within sixty days of the date of that order, passed by it under this Act.” The words “sixty days from the date of the order passed by it” occurring in Section 48-AA of the Advocates Act, 1961, came up for consideration before the Hon'ble Supreme Court of India in D. Saibaba -vs- Bar Council of India [ (2003) 6 SCC 186 ] and after citing earlier decisions, it has been held as follows:- “9. So far as the commencement of the period of limitation for filing the Review Petitioner is concerned, we are clearly of the opinion that the expression “the date of that order” as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the Review Petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart. ...... 18. A construction which would render the provision nugatory ought to implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart. ...... 18. Reading word for word and assigning a literal meaning to Section 48-AA would lead to absurdity, futility and to such consequences as Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning – and so read it – as would give life to an otherwise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised. 19. On the same principle the provision has to be interpreted from the point of view of exercise of the power by the Bar Council. The interpretation ought to be directed towards giving the expression a meaning which will carry out the purpose of the provision and make the remedy of review conferred by the provision meaningful, practical and effective. How can the Bar Council of India or any of its committees exercise their power to review unless the matter is before them? The jurisdiction to exercise power of review does not come to an end merely by lapse of sixty days from the date of the order sought to be reviewed. In view of the construction which we have placed hereinabove, in our opinion, the expression “sixty days from the date of that order” prescribes the period of limitation for invoking the power of review. It has nothing to do with the actual exercise of power by the Bar Council. In other words, merely by lapse of sixty days from the date of the order sought to be reviewed, the Bar Council of India or any of its Committees is not divested of this power to exercise review jurisdiction. It has nothing to do with the actual exercise of power by the Bar Council. In other words, merely by lapse of sixty days from the date of the order sought to be reviewed, the Bar Council of India or any of its Committees is not divested of this power to exercise review jurisdiction. That is the only reasonable construction which can be placed on the provision as framed; though we cannot resist observing that the provision is not happily drafted.” In this context, reference would also have to be made to the decision of the Hon'ble Supreme Court of India in State of Punjab -vs- Khemi Ram [ AIR 1970 SC 214 ] in which it has been held as follows:- “It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned, the authority making such order would be in a position to change its mind and modify it if it though fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no change whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus may go away from the address given by him for service of such orders, or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. An officer against whom action is sought to be taken, thus may go away from the address given by him for service of such orders, or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word 'communication' ought not to be given unless the provision in question expressly so provides.” (emphasis supplied on the underlining) On a conspectus of the aforesaid legal principles laid down in these binding decisions, it would follow that in order to give a meaningful and effective interpretation of the words “within a period of one year from the date of initiation of the proceedings at the instance of the State Bar Council” occurring in Section 36-B(1) of the Advocates Act, 1961, it would have to be read as “within a period of one year form the date of communication of the decision of the State Bar Council to the Advocate against whom the complaint is made, regarding the initiation of disciplinary proceedings at the instance of the State Bar Council.” It may be added by way of clarification here that 'communication' would mean the despatch of the order by the State Bar Council, and its actual delivery to the Advocate concerned would be inconsequential inasmuch as it would be possible for the delinquent Advocate to indefinitely avoid the receipt of the order so as to protract the commencement of the proceedings against him. 8. In the light of the aforesaid conclusion arrived, it is noticed from the records of the present case that the decision taken by the Special Committee of the BCTN&P on 09.11.2017 to initiate disciplinary proceedings against the Petitioner was communicated to him by notice dated 07.05.2018 that had been despatched on 09.05.2018, which would mean that the Disciplinary Committee of the BCTN&P has to conclude the disciplinary proceedings in this case within one year from 09.05.2018. However, in view of the pendency of this Writ Petition from 08.11.2018 till today (28.01.2019), the said period has to be excluded while computing the period of one year for the aforesaid purpose. However, in view of the pendency of this Writ Petition from 08.11.2018 till today (28.01.2019), the said period has to be excluded while computing the period of one year for the aforesaid purpose. The Disciplinary Committee of the BCTN&P shall endeavour to expeditiously complete the disciplinary proceedings against the Petitioner, preferably by ensuring that there is atleast one effective hearing every week showing progress of the case and that the spirit behind the time limit for completion of disciplinary proceedings stipulated in Section 36-B(1) of the Advocates Act, 1961, is fulfilled. 9. In the upshot, the Writ Petition is allowed on the aforesaid terms. No costs. Consequently, the connected Miscellaneous Petition is closed.