BALDEV SINGH DHINGRA AND OTHERS A v.

MADAN LAL GUPTA AND OTHERS

FEBRUARY 4, 1999

[S.B. MAJMUDAR AND R.P. SETHI, JJ.] B r

Advocates Act, 1961 :

Sections 2(1)(a), 2(1)(k), 2(1)(n), 6, 17, 26A 3~Disciplinary Proceedings under section 35 against practising Advocate-Charge of misconduct c while acting as a Judge-Licence to practice su"endered-Name on the roll of the State Bar Council-Advocate not practising at the time of misconduct-No allegation of misconduct after resumption of practice-Held, Disciplinary jurisdiction under section 35 cannot be invoked for misconduct allegedly committed by a non-practising Advocate. -.....

D S.35---Disciplinary proceedings-Invocation of-WJ1ert-fleld, S. 35 can be invoked against a practising Advocate for professional or any other misconduct committed in his professional capacity.

Bar Council of India Rules, 1975.

E Chapter III, Rule 5'-Practising Advocate ceases to practice-Licence to practice su"endered-Name continues on the roll of the State Bar Council-Held, cannot be said to be an Advocate practising under the Advocates

4.ct, 1961.

Rule 5-Permission to resume practice-No disqualification incu"ed F

under section 24-A, Advocates Act-Held, non-practising Advocate cannot be refused permission to resume practice.

Words & PhraseJ~'Prof essional misconduct', 'Other misconduct', 'Practising Advocate', 'Non-practising Advocate'-Meaning of in the context G -, . of 1dvocates Act, 1961. ~

Respondent No. 1 was enrolled as an Advocate in 1963 by the Bar Council of Punjab and Haryana under the provisions of the Advocates Act.

He was selected as a Judicial Officer by the High Court of Punjab and Haryana and he joined Judicial Service and got his licence to practice H 377

A suspended. During his tenure Magistrate-cum-Sub-Judge 1st Class at

Samrala in Ludhiana District of Punjab State, complaints of bribery and commission of other misconduct were made against him. Regular departmental inquiry was conducted against him and the Inquiry Officer found him guilty of offence punishable under section 5(1)(e) of the Preven- . tion of Corruption Act, 1947 as well as misconduct unbecoming of a B Judicial Officer. The State Government accepted the recommendation of the High Court and dismissed him from service. After the dismissal order, Respondent No. 1 requested the Chairman of the State Bar Council to permit him to resume practice as an Advocate which was accepted on 26.7.77 and since that date he has been practicing as an Advocate in the C Taluk Court at Samrala. This was objected to by members of the Samrala

Bar. The Chairman of the State Bar Council confirmed the earlier order.

Seven members of Samrala Bar including the present appellants filed Revision Petition before the Bar Council of India which was allowed with a direction to the State Bar Council to initiate appropriate disciplinary D proceedings against Respondent no.1. Proceedings under section 35 of the Advocates Act, 1961 were registered as Disciplinary Case before the appropriate disciplinary committee of the State Bar Council against Respondent No.1. The Disciplinary Case stood statutorily transferred to the Bar Council of India on the expiry of the period of one year prescribed by law for finalisation of the case by the disciplinary committee of the State Bar E Council. The Bar Council of India dismissed the case.

Against the order passed by the Bar Council of India, the appellantoriginal complainants have filed the present appeal.

The contention of the appellants was that Respondent No. 1 was guilty of 'misconduct' other than professional misconduct under section 35 (1) of the Act when he was found liable to be dismissed from Judicial Service on proved misconduct of corruption as at the time when the complaint was filed against him he was an Advocate on the roll of the State Bar Council and consequently, he was liable to be proceeded against; and G that it was not the case of the appellants that Respondent No. 1 should be proceeded against under section 24-A of the Act.

The contention of Respondent No. 1 was that he had surrendered his licence to practice in 1965 when he was selected as a Judicial Officer and H any alleged misconduct committed hy him during his tenure as a judicial

B. S. DHINGRA v. M. L. GUPTA 379

Officer could not be said to be 'other misconduct' committed by him while A .. he was an Advocate on the roll of the State Bar Council and therefore, Section 35(1) was not attracted and the disciplinary committee of the Bar Council had no jurisdiction to inquire into such alleged misconduct; that only Rule 5 of the Bar Council of India Rules applied to the facts of the case and once admittedly Section 24-A was out of picture as Respondent B no. 1 had not incurred any disqualification under section 24-A of Chapter III of the Act, there was no alternative for the State Bar Council or the

"' Bar Council of India to refuse permission to Respondent No. 1 to resume

~ his practice; and that it was not the case of the appellant • complainants that Respondent No. 1 had committed any misconduct as an Advocate after resumption of practice by him since 26.7.77. c

Dismissing the appeal, the Court

HELD: 1. Sub-Section (1) and Clauses (h) to (d) of Sub- Section (3) of Section 35 of the Advocates Act clearly indicate that punishments D contemplated therein have to be imposed on practising Advocates found guilty by the Bar Council ofJJaving i:ommitted misconduct while they were active practitioners of law. A conjoint reading of the Sub-Sections of Section 35 leaves no room for doubt that before a complaint is filed under section 35(1) for invoking the powers of the disciplinary committee of the State Bar Council for punishing the delinquent Advocate under sub-sec- E tion. (3) of section 35, the 'professional' or 'other misconduct' alleged to have been committed by him must be committed at a time when he is a practising Advocate whose name is on the roll of the State Bar Council concerned. (386-D-E; 389-D-E] F

2. It is obvious that 'professional misconduct' cannot be committed by anyone who is not practising the profession of 1aw being an Adv'!cate

--~- on the roll of the Bar Council concerned. It is also true that such a person while practising law might commit any 'other misconduct' which may not necessarily he 'professional misconduct'. He may commit misconduct not G in his capacity as a professional but in any other capacity. (390-D]

In the matter of D, an Advocate of Supreme Court, AIR (1956) SC 102, -::..:· relied on.

3. Before section 35 can be be pressed in service by any complainant, H

A the following two requirements of misco11duct have to be alleged and proved before any disciplinary proceedings can result in punishment of the delin quent Advocate (i) the Advocate must be alleged to be guilty of professional or other misconduct, and (ii) such misconduct must have been committed by him while he was a practising Advocate enrolled as such on the roll of the B State Bar Council concerned. The second ingredient is conspicuously miss

ing in the present case. Respondent No. 1 had already surrendered his licence to practice and hadjoined full time service of Judiciary. It is difficult to appreciate how he can be treakd to be an Advocate on the roll of the State Bar Council at the time when he is alleged to have committed the misconduct in question. Respondent No. 1 might have committed delinquency when he C was a Judicial Officer but for that he was departmentally tried and punished and was dismissed from service. But so far as resumption of practice there after by Respondent no. 1 is concerned, no misconduct of any type is alleged against. him by the complainants after he had resumed practice as a professional after26.7.77. (390-E; F-G; 391-A-C)

4. Rule 5 of the Bar Council of India Rules deals with a contingency where an enrolled Advocate ceases to practice by joining other vocation in life and the procedure to be adopted by him in such a case.

Provisions of Rule 5 leave no room for doubt that when a practising Advocate ceases to practice, he has to surrender his certificate of E enrolment in original and when he resumes practice he has to be returned the certificate of enrolment. During the time he .has suspended his practice he cannot be said to be acting as an Advocate under the Act. The moment that happens he will be out of the net of disciplinary provisions which can be invoked by the State Bar Council or for that F matter the Bar Council of India in connection with his actions, deeds, and misdeeds, if any, committed by him while he is not in practice as an Advocate. Even assuming that the name of such non-practitioner originally entered on the roll of the State Bar Council remains in suspense or can be treated as latently existing on the roll, so far as

G disciplinary jurisdiction under section 35(1) of the Act is concerned, it can never get attracted against him for the misconduct allegedly committed by him as a non-practising Advocate. It is also not in dispute that while Respondent no. 1 was permitted to resume his practice after being dismissed from Judicial Service he could not have been legitimately refused permission to resume practice as Rule 5 (2) did not H apply in his case as admittedly he did not incur any disqualification

,... .

B. S. DHINGRA v. M. L. GUPTA [ S.B. MAJMUDAR, J.) 381

under section 24-A of Chapter III of the Act as it stood in the Statute Book A .., in the year 1977. [391-F; 392-DG]

5. It is the conduct of practising Advocates that is dealt with by Chap ter V of the Act which provides for appropriate punishment to be imposed on such practising Advocates for their alleged misconducts. Chapter V of the Act in which section 35 is found has nothing to do with alleged misconduct of non-practising erstwhile Advocates who might have committed any such misconduct when they were not practising Advocates. As Respondent no.1 was alleged to have committed misconduct as a judicial Officer when he was not a practising Advocate and when his n11me on the.roll of the State Bar Council remained suspended simultaneously with his right to practice as an Advocate, the complaint filed by the appellants, against Respondent No. 1 for such misconduct was not legally maintainable under section 35(1) oftbe Act. [394-C-D]

111 the case of Sri M. Abdul Kasim (a Pleader) AIR (1958) A.P. 209,

distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2478 of ,_.. 1989.

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..--·..--., .

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From the Judgment and Order dated 11.2.89 of the Disciplinary Committee of the Bar Council of India in B.C.I.T.R.C. No. 75 of 1983.

B.D. Aggarwala, Davender Gupta, K.K. Misra, Anish Dayal and B.D.

Sharma for the Appellants.

Kapil Sibbal, Ranjit Kumar, Chandra Bhushan Pd. and Ranendra Pd.

Saxena for the Respondents.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J This appeal under Section 38 of the Advocates Act, 1961 (hereinafter referred to as the 'Act') has brought in challenge

the order passed by the disciplinary committee of the Bar Council of India G in a transferred case whereunder Respondent No. 1 advocate was exonerated of the charge of misconduct levelled against him by the appellant-complainants. In order to appreciate the grievance of the appellants, it is necessary to have a look at the relevant facts leading to these proceedings.

A BACK GROUND FACTS:

'Y Respondent no. 1 was enrolled as an advocate by the Bar Council of Punjab & 'Haryana under the provisions of the Act in 1963 and he started his practice as an advocate at Faridkot in the Punjab State. Subsequently,

B he was selected as a judicial officer by the High Court of Punjab & Haryana and he joined judicial service in the year 1965 and got his licence to practise suspended. In the year 1972 Respondent no. 1 was posted as Judicial Magistrate-cum-Sub-Judge Isl Class at Samrala in Ludhiana Dis- ..

trict of Punjab State. During his tenure, complaints of bribery and commis-

"of

sion of other misconduct were made against him by several persons to the c High Court of Punjab & Haryana at Chandigarh. After preliminary inquiry by a Judge of the High Court, a regular departmental inquiry was held against him. T.he Inquiry Officer found Respondent no. 1 guilty of offence punishable under Section 5(1)(e) of the Prevention of Corruption Act, 1947 as well as misconduct unbecoming of a judicial officer, though he was D exonerated of three other charges. The High Court of Punjab & Haryana accepted the report and recommended his dismissal from judicial service to the Government of Punjab. The State Government by its order dated 30.6.77 accepted the recommendation of the High Court and dismissed him k' from service. Respondent no. 1 unsuccessfully challenged the dismissal

E order in Writ Petition before the High Court and thereafter his challenge to the dismissal order also failed before this Court when his Special Leave Petition was dismissed by this Court on 26.3.1979. In the meanwhile, after the dismissal order, the respondent requested the Chairman of the State Bar Council, Respondent no. 3 herein, to permit him to resume his practice as an advocate. The said request was accepted by the Chairman of the State .

t F Bar Council on 26.7.77. It is not in dispute between the parties that since that date Respondent no. 1 is practising as an advocate in the Taluk Court at Samrala wherein earlier he was functioning as a Presiding Judge. Certain members of the Samrala Bar including its President filed objections dated ~-

21.11.77 against the grant of resumption of licence to practise as made

~ G available to Respondent no. 1. The then Chairman of the State Bar Council by his order dated 26.7.79 confirmed the earlier order dated 26.7.77 granting resumption of licence to practise to Respondent no. 1. Under these circumstances, seven members of Samrala Bar including the present appellants filed Revision Petition No. 14 of 1980 before the Bar Council of ' , ....... ...

India on 12.4.80. praying for quashing the order passed by the State Bar H Council. The Bar Council of India by its order dated 25.7.81 set aside the

B.S.DHINGRAv. M.L.GUPTA[S.B.MAJMUDAR, J.] 383

earlier orders of the State Bar Council observing that 'prim a f acie' it A appears that Respondent no. 1 was guilty of criminal misconduct under Section 5(1)(e) of the Prevention of Corruption Act and other charges' and directed that appropriate disciplinary proceedings be initiated by the State Bar Council against Respondent No. 1. The appellant, along with four other members of the Bar Association at Samrala, by an application dated 28.8.81, moved the State Bar Council for drawing up of proceedings under Section 35 of the Act. These proceedings were registered as Disciplinary Case before the appropriate disciplinary committee of the State Bar Council against Respondent no. 1. In the said proceedings, evidence was led by the respective parties and the matter was pending for arguments. However,

in the meantime, period for one year prescribed by law for finalisation of C the case by the disciplinary committee of the State Bar Council expired.Consequently, the disciplinary case against Respondent no. 1 stood statutorily transferred to the Bar Council of India. The Bar Council of India beard the disciplinary case and it ultimately dismissed the same by its order dated 11.2.89. It is against the said order that present appeal is D moved by the appellant-original complainants as afores.aid.

RIVAL CONTENTIONS:

Learned counsel appearing for the appellants in support of the appeal submitted that Respondent no. 1 was guilty of misconduct and was E liable to be proceeded against under Section 35 of the Act. He, however, fairly stated that it is not the case of the appellants that Respondent no. 1 should be proceeded against under Section 24-A of the Act. But it was submitted that Respondent no. 1 was guilty of 'misconduct' other than professional misconduct under Section 35(1) of the Act as at the time the F complaint was filed against him he was an advocate on the roll of the State Bar Council and consequently was liable to be proceeded against for an appropriate punishment order as envisaged by Section 35 of the Act and that the Inquiry Officer wrongly proceeded on the basis that because Section 24-A was not attracted, nothing more could have been done against Respondent no. 1. It was vehemently submitted that the words 'other G misconduct' as contra-distinguished from 'professional misconduct' mentioned in Section 35(1) of the Act, clearly cover the facts of the present case. Respondent no. 1 was unfit to continue as an advocate being guilty of such other misconduct when he was found liable to be dismissed from judicial service on proved misconduct of corruption as found by the High H

A Court as his disciplinary authority at the relevant time. That such a person should not continue as an advocate and was liable to be punished as per Section 35 of the Act. It was also submitted that even though the misconduct was committed by Respondent no. 1 while he was not actually practising as aJl advocate and had surrendered his certificate of .:nrolment, as B per Rule 5 of the Bar Council, still his name did continue on the roll of advocates maintained by the State Bar Council. Hence, Section 35(1) got attracted. The disciplinary committee, therefore, had the jurisdiction to pass appropriate punishment provided by Section 35(3) of the Act.

Learned senior counsel, Mr. Kapil Sibbal, on behalf of Respondent C no. 1 on the other hand, submitted that Repondent no. 1 who was enrolled as an advocate since 1963 had surrendered his licence to practise in 1965 on being selected as a Judicial Officer and any alleged misconduct committed by him during his tenure as a Judicial Officer cannot be said to be 'other misconduct' committed by him while he was an advocate on the roll D of the State Bar Council and, therefore, Section 35(1) was out of picture.

That only Rule 5 of-the Bar Council of India applies to the facts of this case and when suspended licence to practise was sought to be got restored, all that Respondent no. 1 had to show was that he had not incurred any disqualification under Section 24-A of Chapter III of the Act during the E period of suspension and once admittedly the said Section 24-A was out of picture, there was no alternative for the State Bar Council or the Central Bar Council/Bar Council of India to refuse permission to Respondent no. 1 to resume his practice. That it was not the case of the appellant-complainants that after resumption of practice since 26.7.77, Respondent no. 1 had committed any misconduct as an advocate. Thereafter the past delin- F quency, if any, committed by Respondent no. 1 as Judicial Officer cannot entitle the appellant-complainants to invoke Section 35(1) of the Act and equally the.disciplinary committee of the Bar Council had no jurisdiction to inquire into such alleged misconduct on the part of Respondent no. 1 and to pass any punishment order against him. It was, therefore, submitted G that the order under appeal requires no interference.

In view of the aforesaid rival contentions, the following solitary point arises for consideration "whether the complaint filed by the appellants under Section 35(1) of the Act was legally maintainable against Respon- H dent No. 1 on the grounds alleged therein."

B. S. DHINGRA v. M. L. GUPTA [ S.B. MNMUDAR, J.) 385

Before we proceed further to consider this solitary point arising for A <if our decision, it is necessary to note the relevant statutory scheme in the ::;. light of which this controversy has to be resolved. Chapter V of the Act deals with conduct of advocates. Sub-section ( 1) of Section 35, on the interpretation of which in the light of the admitted facts on record hinges the fate of this appeai deserves to be noted in extenso : B

"35. Punishment of advocates for misconduct.- {1) 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 professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. c

({1-A) The State Bar Council 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 D State Bar Council.]

2. The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice therefore to be given to the advocate concerned and the Advocate-General of the State.

3. The dsciplinary committee of a State Bar Council after giving the advocte concerned and the Advocate- General an opportunity of being heard, may make any of the following orders, namely : F

(a) dismiss the complaint or, where the proceedings were

-:>- initiated at the instance of the State Bar Council, direct that the proceedings be filed;

{b) reprimand the advocate; G

( c) suspend the advocate from practice for such period as it

'-- may deem fit;

--< ( d) remove the name of the advocate from the State roll of advocates.

4. Where an advocate is suspended from practice under clause

(c) of sub-section (3), he shall, during the period of suspension, bedebarred from practising in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

(Explanation. - In this section (Section 37 and Section 38), the C expressions "Advocate-General" and "Advocate-General of the State", shall in relation to the Union territory of Delhi, mean the Additional Solicitor-General of India.)

A mere look at sub-section (1) of the aforesaid section shows that the D complaint under the said provision must allege that any advocate on the roll of the State Bar Council has been guilty of professional or other misconduct. If this is alleged and is ultimately proved then only the disciplinary committee of the concerned State Bar Council can pass appropriate punishment orders as laid down by Clauses (b) to ( d) of sub-section (3) of Section 35 of the Act. These provisions clearly indicate E that punishments contemplated by them have to be imposed on practising advocates found guilty by the Bar Council of having committed misconduct, while they were active practitioners of law. For the purpose of present discussion, we may assume that learned counsel for the appellants is right when he contends that even when a practising advocate surrenders his p licence to practise on being elevated to the bench of the Court on joining judicial service, his name on the State Bar Council's roll of advocates may continue but even on that assumption we fail to appreciate how on the facts of the present case the provisions of Section 35(1) could have been invoked by the complainants. Before any complaint under Section 35 of the Act can be filed and processed further it must be alleged by the complainant that G the concerned misconduct for which grievance is made, was committed by a professional as the requirement of the Section is that the allegation of misconduct on the part of the concerned advocate must be either 'profesional misconduct' or 'other misconduct. It is obvious that 'Professional misconduct' cannot be committed by anyone who is not practising H the profession of law being an advocate on the roll of the Bar Council

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B.S.DHINGRAv. M.L.GUPTA(S.B.MAJMUDAR, J.) 387

concerned. It is also true that such a person while practising law might A commit any 'other misconduct' which may not necessarily be 'professional misconduct'. For example, if a practsing advocate who is enrolled as an advocate on the roll of the State Bar Council concerned is found guilty of any misdemeanour or misconduct not necessarily in his capacity as a professional like beating his neighbour or for rash and negligent driving B or any other misconduct while not acting as an advocate, still he may have to face the music under Section 35(1) provided at the time when be commits such alleged misconduct he is practising law as a 'professional' duly registered as an advocate on the roll of the concerned State Bar Council.

So far as the types of advocates who can be proceeded against under Section 35 for alleged profesional or other misconduct are concerned, we have to turn to the defmition of the term 'advocate' as found in Section 2(1) Clause (a) which defmes an 'advocate' as under.

""advocate" means an advocate entered in any roll under the D provisions of this Act."

The word "roll" is defined by Section 2( 1) (k) as under :

""roll" means a roll of advocates pepared and maintained under \ E this Act." \

Section 6 deals with Functions of State Bar Councils. Functions of the State Bar Council, amongst other, provide :

"(a) to admit persons as advocates on its roll;

(b) to prepare and maintain such roll;

(c) to entertain and determine cases of misconduct against advocates on its roll;

(d) xxxxx xxxxx xxxxx xxxxx

xxxxx xxxxx xxxxx xxxxx

State roll is defined by Section 2( 1) Clause ( n) as under :-

A ""State roll" means a roll of advocates prepared and maintained by a State Bar Council under Section 17."

When we turn to Section 17 we find that the State Bar Council maintains roll of advocates as under :

"(1) Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of -

(a) all persons who were entered as advocates on the roll of any

High Court under the Indian Bar Councils Act, 1926 (38 of 1926}, immediately before the appointed day (including per~ sons, being citizens of India, who before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area which before the said date was comprised within India as defined in the Government of India Act, 1935, and who at any time} express an intention in the precribed manner to practise within the jurisdiction of the Bar Council;

(b) all other persons who are admitted to be advocate on the roll of the State Bar Council under this Act on or after the appointed day."

Sub-section (2) of Section 17 provides that :

"(2} Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates."

How the seniority of advocates mentioned in the roll is to be maintained, is provided by Section 17(3}. Sub-section (2) clearly lays down that the 'State roll' of advocates would consist of two parts consisting of senior advocates and other advocates. These provisions clearly indicate that on the "State roll" of advocates maintained by the State Bar Council, the names G of those professionals who are practising law either as 'Sr. Advocates or as other advocates' have to be mentioned. If a person has already surrendered his licence to practise and joined full time service of judiciary as has happened in Respondent no. l's case, it is difficult to appreciate how he can be treated to be an advocate on the roll of the State Bar Council at H the time when he is alleged to have committed the misconduct in question.

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B. S. DHINGRAv. M. L. GUPTA [ S.B. MATMUDAR, J.) 389 ''"' This conclusion also becomes obvious in the light to Section 35(3) which entitles the disciplinary committee of a State Bar Council after giving the A

advocate concerned and the Advocate General an opportunity of being heard, to pass necessary orders of punishment as mentioned in Clauses (b) to ( d) thereof. If any punishment is to be imposed after hearing him, the disciplinary committee of the Bar Council may either reprimand or B ... suspend him from practice or remove his name from the "state roll" of ,..

advocates. Clause ( d) of sub-section (3) contemplates a major punishment in respect of the advocate concerned which permanently debars him from practising while Clause (c) of sub-section (3) of Section 35 provides for less severe punishment depending upon the facts of the case where the delinquent advocate concerned can be suspended from practice for a given c period of time. The effect of suspension from practice as per Section 35(3)(c) is provided by sub-section (4) of the Act namely that during the period of suspension the advocate concerned be debarred from practising in any court or before any other authority or person in India but if he is removed from practice be will he permanently debarred from practising. D

·~ A .conjoint reading of these sub-sections of Section 35 leaves no room for doubt that before a complaint is filed under Section 35(1) for invoking the powers of the disciplinary committee of the State Bar Council for punishing the delinquent advocate under sub-section (3) of Section 35, the 'professional' or 'other misconduct' alleged to have been committed by him must be committed at the time when he is a practising advocate whose E name is on the roll of the State Bar Council concerned.

Learned council for the respondent was right when he contended placing reliance upon a judgment of this Court in the matter of D, an Advocate of the Supreme Court, AIR (1956) SC 102, that the words 'profes- F sional or other misconduct' would include misconduct committed by an advocate not in his capacity as a professional but in any other capacity. The said decision was rendered in the light of Section 10 of the Bar Councils Act, 1926 which contains pari materia provision dealing with 'professional or other misconduct' of advocates. Interpreting the pharase 'professional G ....... or other misconduct', it was held by this Court as under:-

/ ...

- "The Indian Legislature by using the Words 'professional or other misconduct' in Section 10, Indian Bar Councils Act intended to confer on the Court disciplinary jurisdiction to take action in ciII H

cases of misconduct whether in a profesional or other capacity leaving to the discretion of Court to take action only in suitable cases."

It must be noted that the aforesaid observations were made in the light of factual matrix in the case wherein an advocate of the Bombay High Court B is said to have committed breach of Bombay Prohibition Act by consuming illicit liquor. It is obvious that the said misconduct of the advocate was not in his 'professional' capacity but in 'other' capacity as a responsible citizen while he was active practitioner of law. He had not consumed liquor after ceasing to practise as an advocate. Section 10 of the Bar Councils Act, 1926 C therefore conferred disciplinary jurisdiction on the High Court in such cases of misconduct of advocates.

It is in the light of the aforesaid facts that the said decision of this Court was rendered. Therefore, we must proceed on the basis that 'professional misconduct' as laid down in Section 35(1) of the Act can rope in D practising advocates who commit either 'professional misconduct' c:ir any 'other misconduct'. Still the moot question remains as to when they should have committed such a misconduct to be held answerable to the Bar Council under Section 35 of the Act. The aforesaid decision of this Court does not throw any light on this moot question.

We have, therefore, to decide this question in the light of the scheme of Section 35. Before Section 35 can be pressed in service by any complainant, the following two requirements of misconduct have to be alleged and proved before any disciplinary proceedings can result in punishment of the delinquent advocate.

(1) The advocate concerned must be alleged to be guilty of professional or other misconduct.

(2) Such misconduct must have been committed by him while he was a practising advocate enrolled as such on the roll of the State Bar Council concerned.

The learned advocate for the appellant in the present case is right when he contends that the first ingredient alleged.is established, as admittedly Respondent no. 1 during the time he was a judicial officer had H committed a misconduct of being found guilty of the charges of corruption

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k"'

• ...

B. S. DHINGRA v. M. L. GUPTA [ S.B. MAJMUDAR, J.] 391

in the departmental inquiry held by the High Court and which culminated A into his dismissal from judicial service of the State. It was certainly 'other misconduct'. However, that will not be an end of the matter for the appellants. They must further show that this type of other misconduct was committed by Respondent no. 1 while he was a professional enrolled on the roll of State Bar Council. That ingredient is conspicuously missing in the present case. Respondent no. 1 might have committed delinquency when he was a Judicial Officer but for that he was departmentally tried and punished and was dismissed from service on the recommendation of the disciplinary authority, namely, the High Court of Punjab & Haryana.

But so far as resumption of practice thereafter by Respondent no. 1 is concerned, no misconduct of any type is alleged against him by the complainants after he had resumed practice as a professional after 26.7.77. In this connection, we have to note that under Section 49 of the Act, Bar Council of India has general power to frame rules. As per Section 49(1)(ah), rules can be framed by the Bar Council of India laying down

"the conditions subject to which an Advocate shall have the right to practise D and the circumstances under which a person shall be deemed to practise as an advocate in a Court". In exercise of the said rule making power, the Bar Council of India has framed rules called Bar Council of India rules.

Chapter III of the said rules deals with conditions for right to practise. Rule 1 lays down that :

"Every advocate shall be under an obligation to see that his name appears on the roll of the State Council within whose jurisdiction he ordinarily practices'~.

Rule 5 deals with contingency where an enrolled advocate ceasf!s to practise by joining other vocation in life and the proceedure to be adopted F by him in such a case. Rule 5(1) with its sub-rules deserves to be noted in this connection :

"(1) An Advocate who voluntarily suspends his practice for any reasons whatsoever, shall intimate by registered post to the State G Bar Council on the rolls of which his name is entered, of such suspension together with his certificate of enrolment in original.

(2) Whenever any such advocate who has suspended his practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an H

A affidavit stating whether he hi.s incurred any of the disqualifications under Section 24A, Chapter III of the. Act during the period of suspension .

. (3) The Enrolment Committee of the State Bar Council may order the resumption of his practice and return the certificate to him with necessary endorsement. If the Enrolment Committee is of the view that the Advocate has incurred any of the disqualifications the Committee shall refer the matter under proviso to Section 26(1) of the Act.

( 4) On suspension and resumption of practice the Secretary shall act in terms of Rule 24 of Part IX."

The aforesaid provisions of Rule 5 of Chapter III leave no room for doubt that when practising advocate ceases to practise, he has to surrender his certificate of enrolment in original and when he resumes practice he D has to be returned the certificate of enrolment. During the time he has suspended his practice he cannot be said to be acting as an advocate under the Act. The moment that happens he will be out of the net of the disciplinary provisions which can be invoked by the State Bar Council or for that matter the Bar Council of India in connection with his actions, E deeds and misdeeds, if any, committed by him while he is not in practice as an advocate. Even assuming that the name of such non-practitioner originally entered on the roll of the State Bar Council remains in suspense or can be treated as latently existing on the roll, so far as disciplinary jurisdiction under Section 35(1) of the Act is concerned, it can never get attracted against him for the misconduct allegedly committed by him as a F non-practising advocate. It is also not in dispute that while Respondent no. 1 was permitted to resume his practice after being dismissed from judicial service he could not have been legitimately refused permission to resume practice as Rule 5(2) did not apply in his case as admittedly he did not incur any disqualification under Section 24-A of Chapter III of the Act. To G incur disqualification under Section 24-A :

"(a) the person concerned should be convicted of an offence involving moral turpitude;

(b) he should be convicted of an offence under the provisions of H the Untouchability (Offences) Act, 1955 (22 of 1955); and

't- ...

.. ..

B. S. DHINGRA v. M. L. GUPTA [ S.B. MAJMUDAR, J.) 393

(c) he should be dismissed or removed from employment or A office under the State on any charge involving moral turpitude.

It is pertinent to note that Clause 'C' of Section 24A was inserted on the Statute book only in 1993. Respondent no. 1 was allowed to resume B practice in 1977 when Rule 5 read with the then existing Section 24A did not cover such a contingency. Though the charge against Respondent no. 1 in departmental proceedings conducted by the High Court was certainly in connection with an offence involving moral turpitude as he was allged to be guilty of corruption he could not be said to have been convicted of such an offence by any criminal act. That is precisely the reason why the C Jearned counsel for the apellants did not place reliance on Section 24-

A(i}(a) of the Act which was the only relevant provision of Section 24-A as it then stood. Consequently, under Rule 5 of Chapter III of the Rules, the State Bar Council could not have refused permission to Respondent no. 1 to resume his practice in 1977 after he ceased to be a Judicial Officer D even though he was dismissed from service after departmental inquiry.

It must, therefore, be held that the only provision relied upon by learned counsel for the appellants against Respondent no. 1 being Section 35(1) is not available as both the requirements of the said sub-section are not established in the present .case. Hence there was no occasion for the State Bar Council or Central Bar Council to proceed further with the complaint of the appellants against Respondent no. 1. To recapitualate Section 35(1) can be invoked against an advocate who is on the roll of the State Bar Council as a practising advocate and who is guilty of professional or other misconduct alleged to have been committed by him while being entitled to practise as an advocate even though misconduct alleged may not have strictly been committed by him in his professional capacity. If the name of such an advocate against whom complaint is filed is already removed as per Section 26A from the roll of the State Bar Council at the relevant time when the alleged misconduct is said to have been committed by him, then Section 35(1) gets out of picture qua him even after he G resumes practice at a later point of time. Section 26-A of the Act gives power to the State Bar Council to remove the name of the advocate from the State roll who is dead or from whom a request has been received to that effect as in the case of Respondent no. 1 when he joined judicial service.

It is also to be kept in view that Section 35{1) will have to be read with Section 33 which states that :

"Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocated under this Act."

Thus, enrolnient as an advocate and right to practise law go hand in hand. It is the conduct of such practising advocates that is dealt with by Chapter V of the Act which provides for appropriate punishment to be C imposed on such practising advocates for their alleged misconducts. Chapter V of the Act in which Section 35 is found has nothing to do with alleged misco1;1duct of non-practising erstwhile advocates who might have committed any such misconduct when they were not practising advocates. As Respondent no. 1 was alleged to have committed misconduct as a judicial D Officer when he was not a practising advocate and when his name on the roll of the State Bar Council remained suspended simultaneously with his right to practise as an advocate, the complaint filed by the appellants against Respondent no. 1 for such misconduct was not legally maintainable under Section 35(1) of the Act. There was, therefore, no occasion for the E disciplinary committee of the Bar Council to consider further question of imposing any punishment on him as per sub-section {3) of Section 35.

Before parting with. this appeal, it is necessary to refer to a judgment of the Full Bench of Andhra Pradesh High Court in the case of Sri M.

Abdul Kasim (a Pleader), AIR {1958) AP 209, on which strong reliance F was placed by learned counsel for the appellants. In that case K. Subba

Rao, C.J., (as he then was) speaking for the Court, had to examine the disciplinary powers of the High Court under Section 13(f) of Legal Practitioners Act, 1879. The said provision read thus :

G "The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader or Mukhtar holding a certificate as aforesaid.

xxxxx xxxxx xxxxx xxxxx

(f) for any other reasonable cause".

B. S. DHINGRA v. M. L. GUPTA [ S.B. MATMUDAR, J.) 395

The question before the High Court was whether a pleader holding a A certificate who is said to have abused his position as a judicial Officer after being appointed as such and was dismissed for taking illegal gratification and for inefficiency, could be punished by the High Court under the aforesaid provision. Answering this question in the affirmative, it was held :

"A pleader who abused his position as a Judicial Officer and who was dismissed for taking illegal gratification and for inefficiency, obviously, shOUld not be allowed to spoil the atmosphere of the legal profession which it should be the aim of any society to keep

pure and unsullied." C

It is no doubt true that in the case before the Andhra Pradesh High Court the delinquent pleader while he was Judicial Officer and had ceased to be a pleader had committed misconduct as a Judicial Officer but after he ceased to be a Judicial Officer and resumed his practice, he was found D liable to be dealt with by the High Court under Section 13(t) of the Legal Practitioners Act. It is trite to observe that Section 13(t) of the said Act conferred jurisdiction on the High Court to suspend or dismiss any pleader for any other reasonable cause. The phrase for any other reasonable cause' is of wide import. Consequently, under the said provision, the High Court had the power not to allow any such pleader, who is found guilty of any E misconduct at any point of time to continue his practice as a pleader.

Section 35(1) in the present case is not so widely worded. On the contrary, it clearly indicates the limited nature of disciplinary jurisdiction available to the Bar Council's to punish practising advocates on their roll F if they have committed professional or other miswnduct while practising, __ +- as such. Consequently, the aforesaid decision of the Andhra Pradesh High Court rendered in the light of an entirely different statutory scheme, cannot be of any avail to learned counsel for the appellants. -

The decision impugned in this appeal dismissing the complaint of the G appellant is, therefore found to be well sustained and calls for no interference. The appeal accordingly fails and is dismissed. There will be no order as to costs.

AT.

Appeal dismissed.