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
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
