Case: D.P. Chadha Vs. Triyugi Narain Mishra

for having been passed without affording the appellant a reasonable opportunity of being heard. Section 37 of the Advocates Act, 1961 provides as under :- "37. Appeal to Bar Council of India. - (1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made under Section 35 [or the Advocate General of the State] may, within sixty days of the date of communication of the order to him, prefer an appeal to the Bar Council of India.(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order [including an order varying the punishment awarded by the disciplinary committee of the State Bar Council] thereon as it deems fit :[Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.]" 30. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar Council and may remit or remand the matter for further hearing or rehearing subject to such terms and directions as it deems fit. The Bar Council of India may set aside an order dismissing the complaint passed by the State Bar Council and convert it into an order holding the Advocate proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar Council of India may pass an order of punishment which the State Bar Council could have passed. While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the Advocate, the proviso mandates the exercise of such power to be performed only after giving the Advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty Advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The Advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should be heard. 31. In the case at hand we have perused the proceedings of the Bar Council of India. The complainant did not file any appeal or application before the Bar Council of India praying for enhancement of punishment. The appeal filed by the appellant was being heard and during the course of such hearing it appears that the Disciplinary Committee of the Bar Council of India indicated to the appellants counsel that it was inclined to enhance the punishment. This is reflected by the following passage occurring in the order under appeal :- "While hearing the matter finally parties were also heard as to the enhancement of sentence." 32. The appellant himself was not present on the date of hearing. He had prayed for an adjournment on the ground of his sickness which was refused. The counsel for the appellant was heard in appeal. It would have been better if the Bar Council of India having heard the appeal would have first placed its opinion on record that the findings arrived at by the State Bar Council against the appellant were being upheld by it. Then the appellant should have been issued a reasonable notice calling upon him to show cause why the punishment imposed by the State Bar Council be not enhanced. After giving him an opportunity of filing a reply and then hearing him the Bar Council could have, for reasons to be placed on record, enhanced the punishment. Nothing such was done. The exercise by the Bar Council of India of power to vary the sentence to the prejudice of the appellant is vitiated in the present case for not giving the appellant reasonable opportunity of being heard. The appellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of State Bar Council was passed in December 1995. In the fact and circumstances of the case we are not inclined to remit the matter now to the Bar Council of India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay and as we are also of the opinion that the punishment awarded by the State Bar Council meets the ends of justice. 33. For the foregoing reasons the appeal is partly allowed. The finding that the appellant is guilty of professional misconduct is upheld but the sentence awarded by the Rajasthan State Bar Council suspending the appellant from practice for a period of five years is upheld and restored. Accordingly, the order of the Bar Council of India, only to the extent of enhancing the punishment, is set aside. No order as to the costs. 34. The Bar Council of India, by its order under appeal, directed notices to be issued to Shri Rajesh Jain and Shri Anil Sharma, Advocates, respectively, for initiating proceedings for professional misconduct and for enhancement of punishment. During the course of hearing we had enquired from the learned counsel for the parties as to what was the status of such proceedings. We are told that the proceedings were lying where they were presumably because the records of the State Bar Council and the Bar Council of India were requisitioned here. The records shall be sent back and the proceedings, directed to be initiated, shall now be commenced without any further loss of time. We, however, express no opinion regarding that aspect of the matter at this stage. 35.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]30. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar Council and may remit or remand the matter for further hearing or rehearing subject to such terms and directions as it deems fit. The Bar Council of India may set aside an order dismissing the complaint passed by the State Bar Council and convert it into an order holding the Advocate proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar Council of India may pass an order of punishment which the State Bar Council could have passed. While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the Advocate, the proviso mandates the exercise of such power to be performed only after giving the Advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty Advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The Advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should beappellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of State Bar Council was passed in December 1995. In the fact and circumstances of the case we are not inclined to remit the matter now to the Bar Council of India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay and as we are also of the opinion that the punishment awarded by the State Bar Council meets the ends of justice.