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Tuesday, March 28, 2017

whether the enquiry conducted by the Disciplinary Committee in the present case can be said to be a fair and proper enquiry? Since the allegations made against the appellants were serious and the finding of guilt recorded against them inevitably had civil consequences, it is cardinal that they should have been allowed to cross- examine the concerned witnesses. Not granting of such opportunity, entails in infraction of principles of natural justice. Additionally, we are at a loss to appreciate as to how the Disciplinary Committee consisting of members who were not familiar with the vernacular script, could analyse and appreciate the documentary evidence relied by the parties when the said evidence was in a language not known to them. Without proper analysis of those documents, the members of the Disciplinary Committee could not have arrived at any conclusion, leave alone a conclusive opinion about its efficacy. These infirmities in the enquiry conducted by the Disciplinary Committee, in our opinion, are fatal. It would necessarily follow that the entire enquiry is vitiated. Ordinarily, on this finding, we would have relegated the parties before the Bar Council of India for conducting a fresh enquiry. However, considering the fact that the complaint was made in 1997, that too by none other than the brother of the appellants because of some family disputes and that the appellants have suffered ignominy for all this time due to pendency of enquiry against them and including the finding of guilt recorded by the Disciplinary Committee of the Bar Council of India, we are of the considered opinion that the matter must be put at rest. Accordingly, to do substantial justice, in the fact situation of the present case, we desist from relegating the parties before the Bar Council of India for a fresh enquiry.This appeal succeeds. The impugned order passed by the Bar Council of India dated 05.02.2010 in BCI Tr. Case No. 150 of 2000 is set aside. We make it clear that if the appellants have already deposited/paid the amount towards costs in terms of the impugned decision, they shall not be entitled for refund thereof from the respondent-complainant or the Advocates Welfare Fund of the Bar Council of India as the case may be.

                                                         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8299 OF 2010



Palanisamy and Ors.                                 ….Appellants

                                   Versus

K Dhanpalan                                        …..Respondent



J u d g m e n t



A.M.KHANWILKAR, J.



1.    The respondent filed a complaint before the Bar Council of Tamil  Nadu
on 02.09.1997, for initiating action against the appellants regarding  their
professional  misconduct.  The  Bar  Council  of  Tamil  Nadu  referred  the
complainant to its Disciplinary Committee vide  a  Resolution  No.  271/1998
dated 26.10.1998. The Disciplinary Committee No. II of the  Bar  Council  of
Tamil Nadu then registered a complaint bearing D.C.C. No. 57/1998.   As  the
Disciplinary Committee of the State  Bar  Council  could  not  complete  the
enquiry within one year, the complaint was transferred to  the  Bar  Council
of India and came to be renumbered as Transferred  Case  No.  150/2000.  The
Disciplinary Committee of the  Bar  Council  of  India  proceeded  with  the
enquiry and at the end of the enquiry found that the appellants were  guilty
of professional misconduct.  The Committee, however,  took  a  lenient  view
and merely reprimanded the appellants with strict  warning  that  in  future
they should not indulge in business activities or fail  to  maintain  proper
accounts of their clients.  The Committee also  directed  appellant  Nos.  1
and 2 to pay costs of  Rs.  5000/-  to  the  respondent-complainant  and  to
deposit a further amount of Rs. 10,000/- in the Advocates  Welfare  Fund  of
Bar Council of India, failing  which  they  would  undergo  suspension  from
practicing as advocates for a period of 6 (six)  months.  This  decision  of
the Bar Council of India is the subject matter of the present appeal.





2.    According to the appellants,  the  Disciplinary  Committee  failed  to
provide a fair opportunity of hearing to them including  by  not  permitting
cross-examination of the respondent-complainant.  Whereas, the  Disciplinary
Committee accepted the allegations made by the respondent-complainant  as  a
gospel truth because it  was  so  stated  by  him  on  affidavit.  This  has
resulted in serious miscarriage of  justice.   It  is  also  contended  that
merely on the  basis  of  affidavit  of  the  respondent,  the  Disciplinary
Committee  could  not  have  recorded  a  finding  of  guilt   against   the
appellants. It is then contended that  the  documents  relied  upon  by  the
respondent-complainant were in  vernacular  language.   Without  translating
those documents and giving translated copy thereof to  the  appellants,  the
Disciplinary Committee could not have relied on the same much less record  a
finding with reference to those documents.  The appellants contend that  the
enquiry by the Disciplinary Committee and moreso its  decision  is  vitiated
for the aforementioned reasons.  It is submitted that even  on  merits,  the
Disciplinary Committee could not have recorded a finding  of  guilt  without
giving due weightage to the explanation offered by the  appellants.   It  is
also submitted that  the  respondent-complainant  is  none  other  than  the
brother of the appellants; and the complaint made by him was the outcome  of
personal differences between the family members.  The issues raised  by  him
were at best of civil nature.  Finally, it is contended that the  appellants
have  already  suffered  the  ignominy  of  having  a  complaint   regarding
professional misconduct, instituted against them, and  more  so  because  of
the finding of guilt  recorded  by  the  Disciplinary  Committee  and  being
reprimanded.





3.    Per contra, the respondent-complainant submitted that the Bar  Council
of India has recorded a  finding  of  guilt  after  a  proper  enquiry.  The
allegations in the complaint against the appellants were serious  enough  to
constitute professional misconduct.  It has been found that  the  appellants
failed to maintain proper rental accounts of the respondent-complainant.  It
is also found that the appellants failed  to  get  endorsement  or  approval
from the respondent-complainant. Further, the appellants failed  to  file  a
suit, in spite of instructions given by the respondent-complainant and  also
appeared against the respondent-complainant - though they  were  engaged  by
the respondent-complainant at an earlier point of time. The Bar  Council  of
India also held that appellant Nos. 1 and 2  were  running  an  unauthorized
Chit Fund finance business and were depositing the rent  and  other  amounts
accrued from the  properties  of  the  respondent-complainant  towards  Chit
subscription and were facing a criminal case regarding embezzlement  of  the
Chit prize amount. The Disciplinary Committee,  therefore,  justly  recorded
the finding of guilt against the appellants.  According to  the  respondent-
complainant, the finding of guilt is based on  material  on  record  and  no
fault can be found with the view taken by the Disciplinary  Committee.   The
counsel for the  respondent-complainant  has,  however,  not  countered  the
submission made by the appellants that the  parties  were  related  to  each
other.  But he submitted that the appellants misused the  trust  reposed  in
them by  the  respondent-complainant.  He  submits  that  just  because  the
disciplinary enquiry against the  appellants  remained  pending  from  quite
some time, that by itself cannot be the basis to set aside  the  finding  of
guilt and the order of punishment. The learned counsel for  the  respondent-
complainant, however, did not rebut the plea taken by  the  appellants  that
the respondent-complainant had tendered affidavits during  the  enquiry  and
also produced other evidence, without giving opportunity to  the  appellants
to cross-examine the respondent-complainant and his witnesses.  He has  also
not disputed the plea taken by the appellants that the evidence produced  by
the parties before the Disciplinary Committee  was  in  vernacular  language
and translation of those documents was neither done nor  made  available  to
the Committee or the appellants.





4.     The  moot  question  is:  whether  the  enquiry  conducted   by   the
Disciplinary Committee in the present case can be said  to  be  a  fair  and
proper enquiry?  Since the allegations  made  against  the  appellants  were
serious and the finding of guilt recorded against them inevitably had  civil
consequences, it is cardinal that they should have been  allowed  to  cross-
examine the concerned witnesses.  Not granting of such opportunity,  entails
in infraction of principles of natural justice.  Additionally, we are  at  a
loss to appreciate as  to  how  the  Disciplinary  Committee  consisting  of
members who were not familiar with the vernacular script, could analyse  and
appreciate the documentary evidence relied by  the  parties  when  the  said
evidence was in a language not known to them.  Without  proper  analysis  of
those documents, the members of the Disciplinary Committee  could  not  have
arrived at any conclusion,  leave  alone  a  conclusive  opinion  about  its
efficacy.





5.    These  infirmities  in  the  enquiry  conducted  by  the  Disciplinary
Committee, in our opinion, are fatal.  It would necessarily follow that  the
entire enquiry is vitiated.  Ordinarily, on  this  finding,  we  would  have
relegated the parties before the Bar  Council  of  India  for  conducting  a
fresh enquiry.  However, considering the fact that the  complaint  was  made
in 1997, that too by none other than the brother of the  appellants  because
of some family disputes and that the appellants have suffered  ignominy  for
all this time due to pendency of enquiry  against  them  and  including  the
finding of guilt recorded by the Disciplinary Committee of the  Bar  Council
of India, we are of the considered opinion that the matter must  be  put  at
rest.  Accordingly, to do substantial justice, in the fact situation of  the
present case, we desist from relegating the parties before the  Bar  Council
of India for a fresh enquiry.





6.    This appeal succeeds.  The impugned order passed by  the  Bar  Council
of India dated 05.02.2010 in BCI Tr. Case No. 150 of 2000 is set aside.



7.    We make it clear that if the appellants  have  already  deposited/paid
the amount towards costs in terms of the impugned decision, they  shall  not
be entitled for  refund  thereof  from  the  respondent-complainant  or  the
Advocates Welfare Fund of the Bar Council of India as the case may be.





8.    No order as to costs.





                                                            ………………………………….J.
                                 (Dipak Misra)



                                                            ………………………………….J.
                                  (A.M. Khanwilkar)


                                                          .………………………………...J.
                               (Mohan M. Shantanagoudar)

New Delhi,
Dated: March 21, 2017

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