IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WA.No. 377 of 2007() {IN WPC.7866/2006 OF THIS COURT} APPELLANT(S): PETITIONER NAJMAL BABU, AGED 30 YEARS, S/O.MUHAMMED, KORAMBAYIL HOUSE, THURAKKAL, MAJERI P.O., MALAPPURAM DISTRICT. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS 1. THE BAR COUNCIL OF KERALA, REPRESENTED BY ITS SECRETARY, BAR COUNCIL BHAVAN, HIGH COURT CAMPUS, KOCHI- 682031. 2. THE ENROLMENT COMMITTEE, BAR COUNCIL OF KERALA, REPRESENTED BY ITS CHAIRMAN, BAR COUNCIL BHAVAN, HIGH COURT CAMPUS, KOCHI- 682031. ADDL.R3 BAR COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, 21, ROUSE AVENUE, NEW DELHI 110 002. ADDL.R3 IMPLEADED AS PER ORDER DT. 1.3.07 IN IA 149/07. R1 & R2 BY ADV. SRI.GRASHIOUS KURIAKOSE R3 BY ADVS.SRI.V.V.SURENDRAN & SRI.P.A.HARISH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag.C.J. & V.GIRI, J. ------------------------- W.A.No.377 of 2007 ------------------------- Dated this the 19th day of January, 2009. JUDGMENT GIRI, J. The appellant/petitioner took a law degree by attending the 3 year evening course from the Kerala Law Academy Law College, Thiruvananthapuram. He passed the examination in July, 2004 and according to him, he secured first class in the examinations for all the three years. He submitted an application before the Bar Council of Kerala for enrolling himself as an advocate on 10.11.2004 (which is the date given by the respondents, though according to the petitioner the application was submitted on 15.11.2004). He was enrolled as an advocate on 21.11.2004 and a certificate was also issued to him, as evidenced by Ext.P2. 2. But, on the same day, as per Ext.P3, the Bar Council of Kerala, issued a notice stating that the Enrollment Committee received credible information from reliable sources that the petitioner has obtained the LLB degree by W.A.No.377 of 2007 :: 2 :: attending the evening course, whereas the documents in support of his application do not disclose that he obtained the degree by attending an evening course. It was further alleged that the petitioner was employed as an Assistant in the personal staff of the Minister for Industries and Social Welfare, Government of Kerala and is receiving remuneration. On the premise that prima facie the omission on the part of the petitioner amounts to misrepresentation and fraud which will render himself liable to be removed from the council under the proviso to Section 26(1) of the Advocates' Act {for short “the Act”}, the petitioner was given a notice that the Enrollment Committee proposes to conduct an enquiry as contemplated by Chapter 7 Rule (1) of the Bar Council of India Rules and report its findings to the Bar Council of India. 3. The petitioner submitted a detailed reply as Ext.P4. It seems that several documents were produced. The Enrollment Committee conducted an enquiry. In the meanwhile, the petitioner had approached this court on more than one occasion. He had first approached by W.A.No.377 of 2007 :: 3 :: challenging the vires of the Rule. The challenge was repelled, as evidenced by Annexure V judgment and the same was affirmed in appeal. He had, thereafter, challenged the validity of the notice of show cause issued to him. But he was told that he will have to wait till a final order is passed in that regard. The Enrollment Committee proceeded to conduct an enquiry and by Ext.P7 order, the following findings had been arrived at: “The Committee is of the opinion that the party Shri K.Najmal Babu secured his enrolment playing fruad on the Committee by withholding necessary information. The Committee finds that shri Najmal Babu was in the employment of the Government of Kerala s an Assistant in the personal staff of the Minister for Industries, Govt. of Kerala on the date of Ext.D1 application. The committee reports that the party Shri K.Najmal Babu has got his name entered on the rolls of the advocate by committing fraud, with holding relevant and necessary information. Therefore, we recommend the removal of his name from the roll of advocates maintained by the Bar Council of Kerala.” 4. It is this which was challenged by the petitioner in the writ petition. W.A.No.377 of 2007 :: 4 :: 5. Insofar as the first ground stated in Ext.P3 is concerned, that the petitioner had obtained the degree by attending the evening course in the Law Academy Law College, it may not really survive as an issue, taking note of the fact that this court had, on more than one occasion, directed that the students, who have obtained a 3 year LLB degree from the evening college be enrolled as members of the Bar. 6. What is more important is the second aspect regarding the petitioner suppressing relevant information as to his previous employment as the Secretary of the then Minister for Industries. It was further alleged that he was not really relieved from employment on the date on which he was enrolled. 7. The Committee has proceeded to find that though the certificate produced by the petitioner stated that he was relieved from employment with effect from 12.11.2004, the said order is seen to have been issued only on 29.11.2004 i.e., after the date of enrollment. Therefore, there is a chance that the petitioner might have obtained such an order to suit his W.A.No.377 of 2007 :: 5 :: convenience. It is inter alia on this basis that the Committee has recommended to remove the petitioner from the roll. 8. Learned single Judge proceeded to hold that Ext.P7 may not reply amount to a decision against the petitioner. Learned single Judge proceeded to dispose of the same in the following manner: “In the circumstances, writ petition is disposed of with a direction to respondents to immediately refer the matter to Bar Council of India, if they have already decided in the matter. If decision for reference is not taken, then Bar Council can decide the matter after hearing petitioner's objection and depending on the decision either reference will be made or decision will be communicated to the petitioner at the earliest. If reference is made, I am sure Bar council of India will give priority for petitioner's case as it is a case of enrolled person not allowed to practice.” This has been challenged in this appeal. 9. We heard counsel on both sides. 10. We find from a reading of Ext.P7 that the Enrollment Committee has come to a positive finding that the petitioner secured enrollment by W.A.No.377 of 2007 :: 6 :: playing fraud in not disclosing the necessary information. The Committee has also directed the Secretary of the Bar Council to forward the report in terms of Section 26(1) of the Act. The learned single Judge has proceeded on the premise that notwithstanding Ext.P7, it is open to the Bar Council of Kerala to decide, after hearing the petitioner's objection, whether a reference will have to be made or not. We are of the view that this procedure does not seem to be contemplated by Section 26(1) of the Act or by Ext.P7 report itself. Ext.P7 evidences a finding by the Enrollment Committee that the petitioner has committed fraud and misrepresented certain facts in securing enrollment. Ext.P7 does not reflect any further decision to be taken by the Bar Council in the matter of making a reference to the Bar Council of India in terms of the proviso to Section 26(1) of the Act. There is a finality reflected in Ext.P7 report, insofar the State Bar Council is concerned. Of course, the power to be exercised by the Bar Council of India under the proviso to Section 26(1) would be independent. W.A.No.377 of 2007 :: 7 :: 11. Learned counsel for the appellant submits that the finding in Ext.P7 has been arrived at without giving adequate opportunity to the petitioner to demonstrate that he did not play any fraud with the Enrollment Committee, nor did he misrepresent any facts as such, and that therefore, the recommendation as contained in Ext.P7 should be reconsidered with a further opportunity being given to the petitioner to show cause against the action proposed under Ext.P3. We are not inclined to accept the statement made by the learned counsel for the appellant/petitioner for more than one reason. Firstly, Ext.P3 which is a notice of show cause mainly refers to the petitioner having secured his LLB degree by attending an evening course from the Law Academy Law College. As noted above, this does not really survive as an issue any more. No doubt, there is a reference of fraud and misrepresentation having been practiced by the appellant/petitioner. But a perusal of Ext.P3 will show that the following is the allegation in Ext.P3 as regards the second aspect: W.A.No.377 of 2007 :: 8 :: “Further it is now understood that you are still under the employment of the Government of Kerala and receiving remuneration.” 12. Thus, the show cause notice proceeds on the premise that the petitioner is still under the employment of the Government of Kerala receiving remuneration. It is quite probable that the appellant/petitioner would have produced materials to rebut the allegation contained in the show cause notice. But we find from Ext.P7 that there is no finding as such in Ext.P7 that the petitioner had continued in employment even on 21.11.2004, the date of Enrollment. The emphasis in Ext.P7 seems to be the non-supply of relevant information against Column No.16 in the Enrollment Application. Whether this is a bona fide omission or whether it was a fraudulent act is a matter that could have been enquired against the petitioner only after due notice to him. We are of the view that the Enrollment Committee could have arrived at a finding as regards any fraudulent conduct on the part of the petitioner only after giving him an opportunity to rebut the specific allegation made in this regard. As we W.A.No.377 of 2007 :: 9 :: noted above, the allegation in Ext.P3 is that the petitioner continued in employment and continues to receive remuneration. There is no finding in Ext.P7 affirming this allegation, but nevertheless there is a decision recommending removal of the petitioner's name from the rolls of the Bar Council, in terms of the proviso to Section 26(1) of the Act. 13. In our view, this aspect requires a reconsideration by the Enrollment Committee of the Bar Council of Kerala. 14. Accordingly, we hold that Ext.P7 report shall not be enforced against the petitioner. But, it will be open to the Enrollment Committee to issue a fresh show cause notice to the petitioner, if they are so advised, in terms of Section 26(1) of the Act and proceed to conduct an enquiry, after giving the petitioner an opportunity to file objections thereto. If the Enrollment Committee feels that notice will have to be issued in this regard, they shall do so within two months from the date of receipt of a copy of this judgment. In the facts and circumstances, taking note of the fact W.A.No.377 of 2007 :: 10 :: that the petitioner was enrolled as an advocate on 21.11.2004, we make it clear that if no notice is issued within two months from the date of receipt of a copy of this judgment, then further proceedings against the appellant/petitioner under Section 26(1) of the Act shall stand closed. We further direct that if the Enrollment Committee proceeds to hold an enquiry as they have been permitted herein above, then they shall proceed to hold such enquiry without being influenced by the findings in Ext.P7 enquiry report. Obviously, the appellant/petitioner shall be entitled to adequate and sufficient opportunity to defend himself in such enquiry. Writ appeal is disposed of with the above directions. Sd/- (J.B. KOSHY) ACTING CHIEF JUSTICE Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge