whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 (for brevity, “the Act”) to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time. = Once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within 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. On many an occasion, it has come to the notice of this Court that disciplinary authority of the State Bar Council is not disposing of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. The responsibility to deal with the disciplinary proceedings is cast on the State Bar Council which constitutes its disciplinary committee. Every member of the Disciplinary Committee is aware that the proceeding has to be concluded within one year. The complainant and the delinquent advocate are required to cooperate. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility. One may not be always right in the decision but that does not mean to be shirking away from taking a decision and allow the matter to be transferred by operation of law to the BCI. A statutory authority is obliged to constantly remind itself that the mandate of the statute is expediency and the stipulation of time is mandatory. It will not be erroneous to say that the Disciplinary Committee is expected to perform its duty within a time frame and not to create a blameworthy situation. It is better to remember offering an explanation to one’s own conscience is like blaming everything on “accident”. When duties are given by law, duties are required to be performed. In view of the aforesaid, we allow the appeal, set aside the order passed by the Disciplinary Committee of the BCI and remand the matter to the Disciplinary Committee of the BCI to decide the same in accordance with law within a period of three months from the date of receipt of copy of this judgment. Registry is directed to send a copy of this judgment to all the Secretaries of each of the State Bar Council, who in turn can apprise the members of the State Bar Council so that appropriate steps are taken. There shall be no order as to costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8307 OF 2015

Ajitsinh Arjunsinh Gohil                …   Appellant(s)

Versus

Bar Council of Gujarat and Anr.              …  Respondent(s)

J U D G M E N T

Dipak Misra, J.

The singular issue that is required to be addressed in this appeal  is

whether after transfer of a disciplinary  proceeding,  as  per  the  mandate

enshrined under Section 36B(1) of the  Advocates  Act,  1961  (for  brevity,

“the Act”) to the Bar Council of India (BCI) from  the  State  Bar  Council,

can the BCI, instead  of  enquiring  into  the  complaint  and  adjudicating

thereon, send it back to the State Bar Council with the direction to  decide

the controversy within a stipulated time.  It is interesting  to  note  that

Mr. Preet Pal Singh, the learned counsel for  BCI  would  concede  that  the

said statutory authority has no such power. Mr. D.N.  Ray,  learned  counsel

appearing for the Gujarat State Bar Council  would  propound  with  all  the

thrust at his command that BCI has unfettered jurisdiction to pass  such  an

order inasmuch as it is the  apex  statutory  body  under  the  Act  and  it

possesses plenary powers and, in any case, the  language  of  the  statutory

provision does not create any impediment  for  the  same.  Mr.  Anup  Kumar,

learned counsel  for  the  appellant,  as  is  expected,  concurs  with  the

proponement of Mr. Singh and further  submits  that  the  time  consumed  in

disposal of the disciplinary authority has put the appellant in a  situation

of misery and, therefore, this Court should  quash  the  initiation  of  the

disciplinary proceedings so that efflux of time can  give  the  appellant  a

healing touch and put an end to the agony he has already endured.

2.    In such a situation, thinking it apposite,  the  Court  appointed  Mr.

M.L. Lahoty, learned counsel, as the friend  of  the  Court,  who  submitted

with immense assurance that  acceptance  of  the  stand  of  the  State  Bar

Council would  not  only  run  counter  to  the  language  employed  by  the

legislature but shall cause immense violence to the same  and  the  duty  of

this Court is to give full meaning to the legislative intendment.

3.    We may, in brief, state the factual  score.  The  appellant,  who  was

enrolled as an Advocate with the Bar Council of Gujarat, got elected to  the

post of Secretary of Gandhinagar Bar Association in  2007  and  subsequently

he was elected as the  President  of  the  Bar  Association  in  2008.   One

Mr. P.D. Kanani, who was the Secretary of the  Bar

Association due to differences leveled false  allegations  and  filed  false

civil and criminal cases against the  appellant  and  also  wrote  a  letter

dated 04.09.2008 in this regard to the Secretary,  Bar  Council  of  Gujarat

alleging that he was denied access to certain records and the  accounts  and

there was misappropriation of huge  amount  of  the  Bar  Association.   The

differences and the misunderstanding between  the  appellant  and  Mr.  P.D.

Kanani was resolved and a settlement was arrived at between the  parties  on

18.09.2008 and the book of accounts and other records were  handed  over  by

the appellant to Mr. Kanani.

4.     When everything appeared to have been put to rest,  after  expiry  of

one year and three months, Bar Council of Gujarat vide its  B.C.  Resolution

No. 176 of 2009 dated 06.12.2009 resolved to call for  an  explanation  from

the appellant with regard to complaint preferred  by  Mr.  P.D.  Kanani  and

further putting forth an allegation that it  had  received  a  letter  dated

01.06.2010 from the Registrar, High Court  of  Gujarat  regarding  complaint

against the appellant.   On  the  basis  of  letter  dated  01.06.2010,  Bar

Council of Gujarat took  suo  motu  cognizance  against  the  appellant  and

referred the matter  to  Disciplinary  Committee  III.   The  complaint  was

registered as DC Case No. 25/2010.

5.    It is worthy to note that  the  Bar  Council  of  Gujarat  decided  to

conduct trial of D.C. case No. 25/2010 along  with  D.C.  Case  No.  15/2010

before the Disciplinary Committee No. I.  The  case  of  the  appellant  was

again  transferred  to  Disciplinary  Committee  No.  XII   and   again   to

Disciplinary Committee No. IX.

6.    As the factual matrix would depict,  the  appellant,  upon  filing  of

application, was granted time to file  his  written  arguments  but  without

waiting for the reply of the appellant, the Bar Council of Gujarat vide  its

order dated 17.05.2011 decided D.C. Case No. 15/2010 against  the  appellant

and directed removal of the name of the appellant from roll of  Bar  Council

of Gujarat and imposed costs of Rs.50,000/-.  However, as no order could  be

passed in D.C. Case No. 25/2010 during the statutory  period,  subsequently,

the Disciplinary Committee of the Bar Council of Gujarat vide  letter  dated

24.08.2011, transferred the D.C. Case No.  25/2010  to  the  BCI  which  was

registered as BCI Tr. Case No. 197/2011.

7.    The appellant contended before the Disciplinary Committee of  the  BCI

that there was no such letter dated 01.06.2010 purported to  be  written  by

the Registrar (Inspection), High Court of Gujarat  on  the  basis  of  which

cognizance against appellant had been  taken.  The  Disciplinary  Committee,

after hearing the  appellant,  vide  order  dated  20.06.2015  remanded  the

matter to the Bar Council of Gujarat with a  direction  to  dispose  of  the

case within a period of one  year.    Being  aggrieved,  the  appellant  has

filed the present appeal.

8.    As  indicated  earlier,  Mr.  Anup  Kumar,  learned  counsel  for  the

appellant submitted that the Disciplinary Committee of  the  BCI  could  not

have remanded the matter to the Disciplinary Committee of  the  Bar  Council

of Gujarat as  the  same  is  not  permissible  in  a  case  that  has  been

transferred to the BCI by operation of law under Section 36B(1) of the  Act.

9.    Mr. Ray, learned counsel for the respondent No. 1, in his turn,  would

contend that if the language employed in Section 36B(1)  and  Section  36(2)

are read in juxtaposition, it is abundantly clear that  the  power  to  deal

with the proceedings upon transfer by the BCI is different, for the  statute

confers plenary power on the BCI and such plenary powers in  its  ambit  and

sweep would include the power to remand.  He would emphasise  on  the  words

“may dispose of the same as if it were a proceeding  withdrawn  for  inquiry

under sub-section (2) of section 36” and on that  basis  propound  that  the

said words confer wi8de jurisdiction on the BCI  and  do  not  restrict  its

jurisdiction only to decide the matter.

10.   To  appreciate  the  rival  submissions  raised  at  the  Bar,  it  is

necessary to keenly scrutinize various provisions of the Act and  the  rules

framed by the BCI.  Prior to that, it has to be kept in mind  that  the  Act

was brought into force to amend and consolidate the law  relating  to  legal

practitioners and to provide for the constitution of  Bar  Councils  and  an

All-India Bar.  The statement of objects and reasons of  the  Act  describes

the main features, which are as follows:-

“The main features of the Bill are, –

1. The establishment of an All India  Bar  Council  and  a  common  roll  of

advocates, and advocate on the common roll having a  right  to  practice  in

any part of the country and in any Court, including the Supreme Court;

2. The integration of the bar into a single  class  of  legal  practitioners

know as advocates;

3.  The prescription  of  a  uniform  qualification  for  the  admission  of

persons to be advocates;

4.  The division of advocates into  senior  advocates  and  other  advocates

based on merit;

5.  The creation of autonomous Bar Councils, one for the whole of India  and

on for each State.

Following the recommendations of the All India Bar  Committee  and  the  Law

Commission, the Bill recognized the continued existence of the system  known

as the dual system now prevailing in the High Court of Calcutta and  Bombay,

by making suitable provisions in that behalf: It would, however, be open  to

t he two High Courts, if they so desire, to discontinue this system  at  any

time.

The Bill, being a comprehensive measure,  repeals  the  Indian  Bar  Council

Act, 1926, and all other laws on the subject.”

11.   Section 2(e) defines “Bar Council of India” as follows:-

“Bar Council of India” means the Bar Council  constituted  under  Section  4

for the territories to which this Act extends.”

12.   Section 3 deals with State Bar  Councils.   Section  4  provides  that

there shall be Bar Council for the territories to which this Act extends  to

be known as the Bar Council  of  India  and  stipulates  who  shall  be  the

members of the said Bar Council.  Section 6 enumerates the functions of  the

State Bar Councils.  Section 6(1)(c) empowers  the  State  Bar  Councils  to

entertain and determine cases of misconduct against advocates on  its  roll.

Section 7 engrafts the functions of the Bar Council  of  India.   Section  9

deals with the Disciplinary Committees. The said  provisions  is  reproduced

below:-

“Section 9. Disciplinary Committees. –

(1) A Bar Council shall constitute  one  or  more  disciplinary  committees,

each of which shall consist of three persons of whom two shall be  a  person

co-opted by the Council from amongst its members and the other  shall  be  a

person co-opted by the  Council  from  amongst  advocates  who  possess  the

qualifications specified in the proviso to sub-section (2) of Section 3  and

who are not members of the Council, and the senior-  most  advocate  amongst

the members of a disciplinary committee shall be the Chairman thereof.

(2) Notwithstanding anything contained in sub-section (1), any  disciplinary

committee constituted prior to the commencement of the Advocates  (Amendment

) Act, 1964, (21 of 1964) may dispose of the proceeding  pending  before  it

as if this section had not been amended by the said Act.”

13.   Chapter V contains the heading “Conduct  of  Advocates”.   Section  35

deals with punishment of advocates for misconduct.  Section 35(1) lays  down

that where on receipt of a complaint or otherwise a State  Bar  Council  has

reason to believe  that  any  advocate  on  its  roll  has  been  guilty  of

misconduct, it shall  refer  the  case  for  disposal  to  its  disciplinary

committee.  Section 35(1A) empowers the State Bar Council to may  either  of

its own motion or on application  made  to  it  by  any  person  interested,

withdraw a proceeding pending before its disciplinary committee  and  direct

the inquiry to be made by any other disciplinary  committee  of  that  State

Bar Council.  Sub-section (3) of Section 35 provides for  nature  of  orders

to be passed by the disciplinary committee of  a  State  Bar  Council.   The

said provisions reads as follows:-

“Section 35(3) ?The disciplinary committee of  a  State  Bar  Council  after

giving the advocate concerned and the Advocate- General  an  opportunity  of

being heard, may make any of the following orders, namely:-

dismiss the complaint or,  where  the  proceedings  were  initiated  at  the

instance of the State Bar Council, direct that the proceedings be filed;

reprimand the advocate;

suspend the advocate from practice for such period as it may deem fit;

remove the name of the advocate from the State roll of advocates.”

14.   Section 36 deals with  the  disciplinary  powers  of  Bar  Council  of

India.  The said provision is as follows:-

“Section 36. Disciplinary powers of Bar Council of India-

(1) Where on receipt of a complaint or otherwise the Bar  Council  of  India

has reason to believe that any advocate whose name is  not  entered  on  any

State roll has been guilty of professional or other misconduct, it shall  be

refer the case for disposal to its disciplinary committee.

(2) Notwithstanding anything contained in  this  Chapter,  the  disciplinary

committee of the Bar Council of India may either of its own motion or  on  a

report by any State Bar Council or an application made to it by  any  person

interested,  withdraw  for  inquiry  before  itself  any   proceedings   for

disciplinary action against any advocate  pending  before  the  disciplinary

committee of any State Bar Council and dispose of the same.

(3) The disciplinary committee of the Bar Council of India disposing of  any

case under this section, shall observe, so far  as  may  be,  the  procedure

laid down in Section 35, the references  to  the  Advocate-General  in  that

section being construed as references to the Attorney-General of India.

(4) In disposing of any proceedings  under  this  section  the  disciplinary

committee of the  Bar  Council  of  India  may  make  any  order  which  the

disciplinary committee of a State Bar Council  can  make  under  sub-section

(3) of section, 35  and  where  any  proceedings  have  been  withdrawn  for

inquiry before the disciplinary committee of the Bar Council of  India]  the

State Bar Council concerned shall give effect to any such order.”

15.   Section 36B that has come into force w.e.f.  31.01.1974  provides  for

disposal of disciplinary proceedings.   The  said  provision  is  reproduced

hereinbelow:-

“Section 36B. 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  cash

the proceedings shall be concluded within a period  of  one  year  from  the

date of the 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.

(2) Notwithstanding anything contained in  sub  section  (1)  where  on  the

commencement of the Advocates (Amendment)  Act,  1973,  any  proceedings  in

respect of any disciplinary matter against an  advocate  is  pending  before

the disciplinary  committee  of  a  State  Bar  Council,  that  disciplinary

committee of the State Bar Council  shall  dispose  of  the  same  within  a

period of six months from the date of such complaint, or, as  the  case  may

be, the date of initiation of the proceedings at the instance of  the  State

Bar Council, whichever is later, failing which such other  proceeding  shall

stand transferred to the Bar  Council  of  India  for  disposal  under  sub-

section.”

16.   Relying on the said provision, it is urged by learned counsel for  the

appellant that if any disciplinary proceeding against a delinquent  advocate

initiated under Section 35 of the Act is not concluded within  a  period  of

one year, by operation of law, the same stands transferred to  BCI  and  BCI

is authorized to dispose of the same as if it were  a  proceeding  withdrawn

for inquiry under sub-section (2) of Section 36 of the Act  and,  therefore,

the State Bar Council ceases to have jurisdiction.  Emphasis has  also  been

laid on the language employed in sub-section (2) of  Section  36  that   the

BCI has the authority either of its own or on a  report  by  any  State  Bar

Council or an application made to it by the Disciplinary  Committee  of  the

person interested to withdraw for enquiry before itself any  proceeding  for

disciplinary action against the advocate.  Stress is laid  on  the  language

used in sub-section (4) of Section 36 to  highlight  that  the  Disciplinary

Authority of the BCI is entitled to make  an  order  that  the  Disciplinary

Committee of a State Bar Council can make under sub-section (3)  of  Section

35 and further where any proceeding has been withdrawn  for  inquiry  before

the Disciplinary Committee of the  BCI,  the  State  Bar  Council  concerned

shall give effect to any such order.

17.   Learned counsel would further urge that if the  interpretation  sought

to be placed by the appellant is accepted, the  BCI  would  be  overburdened

with original proceedings from various State Bar Councils and  the  mischief

sought to be corrected under Section  36B(1)  of  the  Act,  namely,  timely

disposal of the complaint, would defeat the statutory purpose.

18.   Learned Amicus Curiae submits that  once  a  case  is  transferred  by

operation of law, it is obligatory on its part to decide  the  same  on  its

merits, for the language employed  under  sub-section  (1)  of  Section  36B

encapsulates two concepts, namely, (i) transfer of  proceedings  on  failure

to conclude the same within one year, and (ii) the BCI is to dispose of  the

same as if it were the proceedings withdrawn for enquiry  under  sub-section

(2) of Section 36.  Elaborating further, he  would  urge  that  there  is  a

transfer by operation of law and the disposal has to be done as if it  is  a

proceeding withdrawn for  enquiry  under  sub-section  (2)  of  Section  36.

According to  learned  counsel,  once  by  operation  of  law  the  case  is

transferred, it has to be disposed of by the BCI and the manner of  disposal

will not confer jurisdiction on it to send back the case to  the  State  Bar

Council.

19.   In this context, it is appropriate to refer to Section 37 of  the  Act

that provides for  appeal  to  the  BCI.   It  stipulates  that  any  person

aggrieved by an order passed by the Disciplinary Committee of  a  State  Bar

Council may prefer an appeal to the BCI  within  60  days  of  the  date  of

communication of the order to him and further such appeal shall be heard  by

the Disciplinary Committee of the  BCI  which  may  pass  such  other  order

including the order varying  the  punishment  awarded  by  the  Disciplinary

Committee of the State Bar Council as it deems fit.

20.   Section 42 of the Act that deals with the power  of  the  Disciplinary

Committee.  The Disciplinary Committee of a Bar Council has the same  powers

as are vested in a civil court under the Code of Civil Procedure in  respect

of certain matters that pertain to enquiry.  It has been highlighted by  the

learned counsel for the respondent No. 1 that  all  proceedings  before  the

Disciplinary Committee of the Bar Council shall be  deemed  to  be  judicial

proceeding within the meaning of Sections 193 and 228 of  the  Indian  Penal

Code, 1860 and every such Disciplinary Committee shall be  deemed  to  be  a

civil court for the purposes of Sections 480, 482 and 485  of  the  Code  of

Criminal Procedure.  Learned counsel has drawn our attention to  sub-section

(3) of Section 42 which reads as follows:-

“For the purposes of exercising any of the powers conferred  by  sub-section

(1),  a  disciplinary  committee  may  send  to  any  civil  court  in   the

territories to which this Act extends, any summons  or  other  process,  for

the attendance of a witness or the production of a document required by  the

committee or any commission which it desires to issue, and the  civil  court

shall cause such process to be served or such commission to  be  issued,  as

the case may be, and may enforce any such process as if it  were  a  process

for attendance or production before itself.”

21.   Relying on the  said  provisions,  it  is  contended  by  the  learned

counsel for the 1st respondent that the BCI has plenary powers  to  pass  an

order as it feels appropriate and in certain cases of statutory transfer  or

transferred by operation of law, is not remanded, there  would  be  enormous

practical difficulties and injustice is likely to be  caused  and  sometimes

due to delinquent advocate.  In  essence,  the  submission  of  the  learned

counsel for the said respondent is that after transfer of inquiry,  the  BCI

is not mandatorily commanded by law to complete  the  enquiry  and  pass  an

order as provided under Section  35(3)  of  the  Act.   He  has  also  drawn

inspiration from Section 49 that confers power on the  BCI  for  discharging

the functions under the Act.  It is urged by him that  Rule  18(5)  of  Part

VII of the Bar Council of India contemplates  an  order  of  remand  if  the

language used is properly appreciated.  Rule 18(5) reads as follows:-

“Rule 18(5). On a consideration of the report of  a  State  Bar  Council  or

otherwise the Disciplinary Committee of the Bar Council of India shall  pass

such orders as it considers proper.”

22.   Thus, the question, as posed  earlier,  fundamentally  centres  around

the jurisdiction of the BCI.  As is discernible from the  language  employed

in Section 36B(1), the transfer takes place by operation of  law.  There  is

a further command to BCI to dispose it  off  as  if  it  were  a  proceeding

withdrawn for enquiry under  sub-section  (2)  of  Section  36.   Thus,  the

jurisdiction for conducting the enquiry and disposal  of  the  complaint  is

conferred on the BCI by the mandate of the Act.  The context, the  intention

and the purpose is clear  as  crystal.  The  BCI  is  required  to  exercise

original jurisdiction that was to be exercised by the State Bar Council.

23.   To understand the language employed in a statutory provision, one  may

recapitulate what Chinnappa Reddy, J. had to say in Reserve  Bank  of  India

v. Peerless General Finance and Investment Co. Ltd. and others[1] :-

“33. Interpretation must depend on the text and the context.  They  are  the

bases of interpretation. One may well  say  if  the  text  is  the  texture,

context is  what  gives  the  colour.  Neither  can  be  ignored.  Both  are

important.  That  interpretation   is   best   which   makes   the   textual

interpretation match the contextual. A statute  is  best  interpreted   when

we  know  why  it was enacted. …”

24.   Sabyasachi Mukharji, J. (as  His  Lordship  then  was)  in   Atma  Ram

Mittal v. Ishwar Singh Punia[2], emphasizing on the intention of  Parliament

or, in other words, the will of the people, observed:-

“9.  … Blackstone tells us that the fairest  and  most  rational  method  to

interpret the will of the legislator is by exploring his intentions  at  the

time when the law was made, by signs most natural and  probable.  And  these

signs are either the words, the context,  the  subject-matter,  the  effects

and consequence, or the spirit and reason  of  the  law.  (emphasis  by  the

court) See Commentaries on the Laws of England (facsimile  of  1st  Edn.  of

1765, University of Chicago Press, 1979, Vol. 1, p. 59).  Mukherjea,  J.  as

the learned Chief Justice then was, in Poppatlal Shah v. State of  Madras[3]

said that each word, phrase or sentence was to be construed in the light  of

purpose of the Act itself. But words must be construed with  imagination  of

purpose behind them said Judge Learned Hand, a long time  ago.  It  appears,

therefore, that though we are concerned with seeking of  intention,  we  are

rather looking to the meaning of the words that  the  legislature  has  used

and the true meaning of what words as  was  said  by  Lord  Reid  in  Black-

Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G.[4].  We

are clearly of the opinion that having regard to the language we  must  find

the reason and the spirit of the law. …”

25.   In S. Gopal Reddy v. State of A.P.[5], the Court observed:-

“It is a well-known rule of interpretation of statutes  that  the  text  and

the context of the entire Act must be looked into while interpreting any  of

the expressions used in a statute. The courts must look to the object  which

the statute seeks to achieve while interpreting any  of  the  provisions  of

the Act. A purposive approach for interpreting the Act is necessary.”

26.   In High Court  of  Gujarat  and  another  v.  Gujarat  Kishan  Mazdoor

Panchayat and  others[6]  while  discussing  about  the  importance  of  the

context, the Court stated thus:-

“38. In The Interpretation and Application of Statutes  by  Reed  Dickerson,

the author at p. 135 has  discussed  the  subject  while  dealing  with  the

importance of context of the statute in the following terms:

“… The essence of the language is to  reflect,  express,  and  perhaps  even

affect  the  conceptual  matrix  of  established  ideas  and   values   that

identifies the culture to which it belongs. For this  reason,  language  has

been called ‘conceptual map of human experience’.”

27.   The aforesaid authorities give stress on textual  interpretation  that

would  match  context  and  further  to  explore  the   intention   of   the

legislature.  The  authorities  further  emphasise  the  words  have  to  be

understood regard being had to the purpose behind it and hence, the  concern

with the intention is basically to decipher the meaning  of  the  word  that

the legislature has placed on it.  When the language employed under  Section

36B(1) and Section 36 are read in juxtaposition, there remains no  scintilla

of doubt that the legislature desired that the disciplinary proceedings  are

to be put an end to within a particular time frame by the State Bar  Council

and if that is not done, the whole thing gets transferred to the BCI,  which

is obliged to cause an enquiry.  Thus understood, there can be no  trace  of

doubt that the original jurisdiction  to  deal  with  the  complaint  stands

transferred to the BCI.  Once the original jurisdiction is  transferred,  to

rely upon the language that the BCI may dispose of would include any  manner

of disposal which would include a remand, cannot be  thought  of.   That  is

neither  the  legislative  intendment  nor  the  legislative  purpose.   The

legislature, as  we  find,  never  intended  a  complaint  made  against  an

Advocate either  from  the  perspective  of  the  complainant  or  from  the

delinquent to be transferred to BCI, again to be sent back.

28.   At this stage, we think it  appropriate  to  state  that  there  is  a

distinction between an appellate jurisdiction which the BCI exercises  under

Section 37 and  the  original  jurisdiction  under  Section  36B(1).   While

exercising the appellate jurisdiction, the BCI can remand the matter to  the

State Bar Council.  In this context, reference to  a  three-Judge  Bench  in

Narendra Singh v. Chhotey Singh and another[7], would be apt.  In  the  said

case, the question arose with  regard  to  ambit  and  jurisdiction  of  the

Disciplinary Committee of the BCI hearing an  appeal  against  an  order  of

Disciplinary Committee of  a  State  Bar  Council  made  under  Section  35.

Dealing with the same, the Court held:-

“8. … appellate body enjoys very wide jurisdiction because it  is  competent

to pass any order as it may deem fit. This jurisdiction of widest  amplitude

takes within its sweep the power to vary the punishment  which  would  imply

enhancement  of  punishment  and  the  only  obligation,  while  varying  or

enhancing the punishment, on the appellate body is to hear  the  person  who

is likely to be prejudicially affected by such an order.”

29.   The Court thereafter  addressed  the  issue  of  scope  and  ambit  of

jurisdiction of a quasi-judicial body whose jurisdiction is defined in  such

as “as it deems fit”.  It referred to the authorities in  Raja  Ram  Mahadev

Paranjype v. Aba Maruti Mali[8] and R v.  Boteler[9]  and  opined  that  the

discretionary jurisdiction has to be exercised keeping in view  the  purpose

for which it is conferred, the object sought to be achieved and the  reasons

for granting such wide discretion.  A reference was made to the decision  in

O.N. Mahindroo v. District Judge, Delhi[10]  wherein  this  Court  has  held

that dealing with an appeal under Section 38, the jurisdiction of the  Court

was not restricted, for the Court is dealing with an appeal not only on  law

but also on appeal on facts.  In the said decision, examining the  amplitude

of power including the power to review, the Court observed:-

“Such powers may be exercised in a suitable case for or against an  advocate

even after the matter  has  gone  through  the  hands  of  the  Disciplinary

Committee at some stage or even through this Court. These matters  are  also

not governed by the analogy of autrefois convict or autrefois acquit in  the

Code of  Criminal  Procedure.  Disciplinary  proceedings  against  a  lawyer

involve not only the  particular  lawyer  but  the  entire  profession.  The

reputation of the legal profession is the sum total  of  the  reputation  of

the  practitioners.  The  honour  of  the  lawyer  and  the  purity  of  the

profession are the primary considerations and they are intermixed.”

After so stating, the Court observed that  a  disciplinary  proceeding

against a member of a  profession  whose  services  are  made  available  to

society as a whole is to be involved  as  between  the  profession  and  its

erring manner and not  between  the  complainant  and  delinquent  advocate.

Emphasis has been laid on the said aspect to determine the  jurisdiction  of

the bodies set up to carry out the purposes of the Act.

30.   Thereafter, the Court adverted to the facts  of  the  case  and  found

that the Disciplinary  Committee  of  the  Bar  Council  of  India  was  not

satisfied with reference to the disposal of third  head  of  charge  by  the

Disciplinary Committee of the State Bar Council,  and  merely  remanded  the

matter to the Disciplinary Committee of the  State  Bar  Council  to  assign

reasons for its decision.  The  said  direction,  as  the  Court  held,  was

certainly within the powers of the appellate body as it had jurisdiction  to

decide an appeal ‘as it deems fit’,  and  while  so  deciding,  it  was  not

hedged in by the technical rule of appeal against acquittal.

31.   Learned counsel for the 1st respondent would  submit  that  the  words

“pass such orders as it considers appropriate” would  clothe  the  BCI  with

the jurisdiction to remand the matter to the State  Bar  Council.   We  have

already  referred  to  the  statutory  scheme  and  the  purposes   of   the

legislation.  As has been held in Narendra Singh  (supra)  the  disciplinary

authority can remand the  matter  in  exercise  of  appellate  jurisdiction.

There can be no shadow of doubt that  the  BCI,  while  exercising  original

jurisdiction on transfer of  a  complaint,  cannot  exercise  the  appellate

jurisdiction.  Therefore, the order passed by the disciplinary authority  by

placing reliance on its rules is wholly unsustainable.

32.   Having expressed our opinion, ordinarily we would  have  proceeded  to

record the formal part of the judgment.  But a significant  aspect  deserves

to be addressed.  It pertains to  the  nobility  of  legal  profession.   In

Sanjiv Dutta, Dy. Secretary, Ministry  of  Information  &  Broadcasting,  In

re[11], the Court, taking note of various  instances  which  deserve  to  be

described  as  unfortunate,  both  for  the   legal   profession   and   the

administration of justice, observed thus:-

“The legal profession is a solemn and serious  occupation.  It  is  a  noble

calling and all those who belong to it are its honourable members.  Although

the  entry  to  the  profession  can  be  had  by   acquiring   merely   the

qualification of technical competence, the honour as a professional  has  to

be maintained by its members by their exemplary conduct both in and  outside

the court. The legal profession is different from other professions in  that

what the lawyers do, affects not only an individual but  the  administration

of justice which is the foundation of  the  civilised  society.  Both  as  a

leading member of the intelligentsia of the society  and  as  a  responsible

citizen, the lawyer has to conduct himself as a model  for  others  both  in

his professional and in his private and  public  life.  The  society  has  a

right to expect of him such ideal behaviour.”

33.   The Court further stated:-

“If the profession is to survive, the judicial system has to  be  vitalised.

No service will be too small in making the system efficient,  effective  and

credible. The casualness and indifference with which some  members  practise

the profession are certainly not calculated to achieve that  purpose  or  to

enhance the prestige either of the profession or  of  the  institution  they

are serving. If people lose confidence in the profession on account  of  the

deviant ways of some of its members, it is not  only  the  profession  which

will suffer but also the administration of justice as a whole.  The  present

trend unless checked is likely to lead to a stage when the  system  will  be

found wrecked from within before it is wrecked from outside.”

34.   With the aforesaid observations, the Court  expected  that  aberration

will be less.  Though the said observations had its impact,  the  misconduct

on the part of some Advocates still continues.

35.   In Sudha v. President, Advocates Association, Chennai and  others[12],

the Court, while dealing with the directions issued by  the  High  Court  of

Madras regarding the management of Madras High Court Advocates  Association,

noted various facts, adverted to  the  resolutions  passed  by  the  Tellers

Committee,  devices  adopted  by  the  Committee  constituted  for  peaceful

meeting, and observed:-

“Many a time it is noticed that those who are not  lawyers  get  entry  into

the Association room by putting on merely black  coat  as  at  the  time  of

election the feelings are running high. Such elements take  undue  advantage

of the situation and bring a bad name to the Association of  the  advocates.

Therefore, to deter such elements the amendments have been  carried  out  in

the  bye-laws.  Those  amendments  carried  out  in  the  bye-laws  of   the

Association can hardly be  regarded  as  against  the  legal  fraternity  in

general and as against junior members of the Bar in particular.”

36.   In the context of the said case, the two-Judge Bench felt  obliged  to

say:-

“The legal profession is different from other professions in that  what  the

lawyers do, affects  not  only  an  individual  but  the  administration  of

justice which is the foundation of the civilised society. Both as a  leading

member of the intelligentsia of the society and as an  intelligent  citizen,

the lawyer has to conduct  himself  as  a  model  for  others  both  in  his

professional and in his private and public life.”

37.   The aforesaid expression  shows  nature  of  the  profession  and  the

expectation from the society from the members of the legal profession.

38.   In Dhanraj Singh Choudhary v. Nathulal Vishwakarma[13],  it  has  been

observed that an Advocate’s attitude towards dealing with his client has  to

be  scrupulously  honest  and  fair  and  the  punishment  for  professional

misconduct has twin objectives – deterrence and correction.

39.   Having noted these  authorities,  we  may  recapitulate  what  Krishna

Iyer, J. had to say in V.C. Rangadurai v. D. Gopalan and others[14]:-

“5. Law’s nobility as a  profession  lasts  only  so  long  as  the  members

maintain their commitment to integrity and service to the community.”

40.    In  this  regard,  a  speech  from  Eulogy   of   Judges   by   Piero

Calamandrei[15] would be seemly:-

“The difference between the true lawyer and those men who consider  the  law

merely a trade is that the latter seek to find ways to permit their  clients

to violate the moral standards of society without over-stepping  the  letter

of the law, while the former look for principles which will  persuade  their

clients to keep within the limits of the spirit of the law in  common  moral

standards.”

41.   We have a purpose in referring to  the  aforesaid  pronouncements.   A

lawyer is treated as a part of the  noble  profession  and  expected  as  an

elite  member  of  the  society,  to  be  professionally   responsible   and

constantly remind himself that his services are rendered  to  the  consumers

of justice.  As has been held  in  Pandurang  Dattatraya  Khandekar  v.  Bar

Council of Maharashtra, Bombay and ohters[16], an advocate stands in a  loco

parentis towards the litigants. He has a paramount duty to  his  client  and

client is entitled to receive disinterested, sincere and  honest  treatment.

42.   Once a complaint is made by a litigant, it has to  follow  a  definite

procedure and is required to be dealt with as per the command of the Act  to

conclude the disciplinary proceeding within 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.  On many an  occasion,

it has come to the notice of this Court that disciplinary authority  of  the

State Bar Council is not disposing of the complaint  within  the  stipulated

period, as a consequence of which the proceeding stands transferred  to  the

BCI.  The responsibility to deal with the disciplinary proceedings  is  cast

on the State Bar  Council  which  constitutes  its  disciplinary  committee.

Every member of the Disciplinary Committee is aware that the proceeding  has

to be concluded  within  one  year.   The  complainant  and  the  delinquent

advocate are required  to  cooperate.  Not  to  do  something  what  one  is

required to do, tantamount  to  irresponsibility  and  the  prestige  of  an

institution or a statutory body inheres in carrying out the  responsibility.

 One may not be always right in the decision but that does not  mean  to  be

shirking away from taking a decision and allow the matter to be  transferred

by operation of law to  the  BCI.   A  statutory  authority  is  obliged  to

constantly remind itself that the mandate of the statute is  expediency  and

the stipulation of time is mandatory.  It will not be erroneous to say  that

the Disciplinary Committee is expected to perform its  duty  within  a  time

frame and not to create a blameworthy situation.  It is better  to  remember

offering an explanation to one’s own conscience is like  blaming  everything

on “accident”.  When duties are given by law,  duties  are  required  to  be

performed.

43.   In view of what we have stated above, we think it  will  be  advisable

that the State Bar Councils  take  a  periodical  stock  of  cases  in  each

meeting with regard to the progress of the Disciplinary Committee, find  out

the cause of delay and guide themselves to act with expediency so  that  the

Council, as a statutory body, does its duty as commanded under the Act.

44.   In view of the aforesaid, we allow the appeal,  set  aside  the  order

passed by the Disciplinary Committee of the BCI and  remand  the  matter  to

the Disciplinary Committee of the BCI to decide the same in accordance  with

law within a period of three months from the date  of  receipt  of  copy  of

this judgment.  Registry is directed to send a copy of this judgment to  all

the Secretaries of each of the State Bar Council, who in  turn  can  apprise

the members of the State Bar Council so that appropriate  steps  are  taken.

There shall be no order as to costs.

………………………..J.

[Dipak Misra]

………………………. J.

[A.M.

Khanwilkar]

New Delhi

April 06, 2017

———————–

[1]    (1987) 1 SCC 424

[2]    (1988) 4 SCC 284

[3]    AIR 1953 SC 274

[4]    1975 AC 591

[5]    (1996) 4 SCC 596

[6]    (2003) 4 SCC 712

[7]     (1983) 4 SCC 131

[8]    1962 Supp. 1 SCR 739; AIR 1962 SC 753

[9]    (1864) 33 LJMC 101 : 122 ER 718

[10]   (1971)  3 SCC 5

[11]    (1995) 3 SCC 619

[12]    (2010) 14 SCC 114

[13]    (2012) 1 SCC 741

[14]    (1979) 1 SCC 308

[15]    Princeton, New Jersey: Princeton University Press, 1946), p.45.

[16]    (1984) 2 SCC 556

———————–

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