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                 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.8299 OF 2010

Palanisamy and Ors.  ….Appellants

Versus

K Dhanpalan …..Respondent

J U D G M E N T

A.M.KHANWILKAR, J.

1. The respondent  filed a complaint  before  the Bar Council  of

Tamil  Nadu  on  02.09.1997,  for  initiating  action  against  the

appellants  regarding  their  professional  misconduct.  The  Bar

Council of Tamil Nadu referred the complainant to its Disciplinary

Committee vide a Resolution No. 271/1998 dated 26.10.1998. The

Disciplinary Committee No. II of the Bar Council of Tamil Nadu then

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registered  a  complaint  bearing  D.C.C.  No.  57/1998.   As  the

Disciplinary Committee of the State Bar Council could not complete

the enquiry within one year, the complaint was transferred to the

Bar Council of India and came to be renumbered as Transferred

Case No. 150/2000. The Disciplinary Committee of the Bar Council

of India proceeded with the enquiry and at the end of the enquiry

found that the appellants were guilty of professional misconduct.

The  Committee,  however,  took  a  lenient  view  and  merely

reprimanded the appellants with strict warning that in future they

should not indulge in business activities or fail to maintain proper

accounts of their clients.   The Committee also directed appellant

Nos.  1  and  2  to  pay  costs  of  Rs.  5000/-  to  the

respondent-complainant  and  to  deposit  a  further  amount  of  Rs.

10,000/- in the Advocates Welfare Fund of Bar Council of  India,

failing  which they  would  undergo  suspension from practicing  as

advocates for a period of 6 (six) months. This decision of the Bar

Council of India is the subject matter of the present appeal.

2. According to the appellants, the Disciplinary Committee failed

to provide a fair opportunity of hearing to them including by not

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permitting  cross-examination  of  the  respondent-complainant.

Whereas, the Disciplinary Committee accepted the allegations made

by the respondent-complainant as a gospel truth because it was so

stated by him on affidavit. This has resulted in serious miscarriage

of justice.  It is also contended that merely on the basis of affidavit

of  the  respondent,  the  Disciplinary  Committee  could  not  have

recorded  a  finding  of  guilt  against  the  appellants.  It  is  then

contended  that  the  documents  relied  upon  by  the

respondent-complainant  were  in  vernacular  language.   Without

translating those documents and giving translated copy thereof to

the appellants, the Disciplinary Committee could not have relied on

the  same  much  less  record  a  finding  with  reference  to  those

documents.   The  appellants  contend  that  the  enquiry  by  the

Disciplinary Committee and moreso its decision is vitiated for the

aforementioned reasons.  It is submitted that even on merits, the

Disciplinary Committee could not have recorded a finding of guilt

without  giving  due  weightage  to  the  explanation  offered  by  the

appellants.  It is also submitted that the respondent-complainant is

none other than the brother of the appellants; and the complaint

made by him was the outcome of personal differences between the

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family members.   The issues raised by him were at  best of  civil

nature.  Finally, it is contended that the appellants have already

suffered the ignominy of having a complaint regarding professional

misconduct, instituted against them, and more so because of the

finding of guilt recorded by the Disciplinary Committee and being

reprimanded.

3. Per  contra,  the  respondent-complainant  submitted  that  the

Bar Council of India has recorded a finding of guilt after a proper

enquiry.  The  allegations  in  the  complaint  against  the  appellants

were serious enough to constitute professional misconduct.  It has

been  found  that  the  appellants  failed  to  maintain  proper  rental

accounts of the respondent-complainant. It is also found that the

appellants  failed  to  get  endorsement  or  approval  from  the

respondent-complainant. Further, the appellants failed to file a suit,

in spite of instructions given by the respondent-complainant and

also appeared against the respondent-complainant -  though they

were engaged by the respondent-complainant at an earlier point of

time. The Bar Council of India also held that appellant Nos. 1 and 2

were  running  an  unauthorized  Chit  Fund  finance  business  and

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were  depositing  the  rent  and  other  amounts  accrued  from  the

properties of the respondent-complainant towards Chit subscription

and were facing a criminal case regarding embezzlement of the Chit

prize  amount.  The  Disciplinary  Committee,  therefore,  justly

recorded the finding of guilt against the appellants.  According to

the  respondent-complainant,  the  finding  of  guilt  is  based  on

material on record and no fault can be found with the view taken by

the  Disciplinary  Committee.   The  counsel  for  the

respondent-complainant  has,  however,  not  countered  the

submission made by the appellants that the parties were related to

each other.  But he submitted that the appellants misused the trust

reposed in them by the respondent-complainant. He submits that

just  because  the  disciplinary  enquiry  against  the  appellants

remained pending from quite some time, that by itself cannot be the

basis to set aside the finding of guilt and the order of punishment.

The learned counsel for the respondent-complainant, however, did

not  rebut  the  plea  taken  by  the  appellants  that  the

respondent-complainant had tendered affidavits during the enquiry

and also produced other evidence, without giving opportunity to the

appellants  to  cross-examine  the  respondent-complainant  and his

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witnesses.   He  has  also  not  disputed  the  plea  taken  by  the

appellants  that  the  evidence  produced  by  the  parties  before  the

Disciplinary Committee was in vernacular language and translation

of  those documents  was neither  done nor  made available  to the

Committee or the appellants.

4. The moot question is: whether the enquiry conducted by the

Disciplinary Committee in the present case can be said to be a fair

and  proper  enquiry?   Since  the  allegations  made  against  the

appellants were serious and the finding of  guilt  recorded against

them  inevitably  had  civil  consequences,  it  is  cardinal  that  they

should  have  been  allowed  to  cross-examine  the  concerned

witnesses.  Not granting of such opportunity, entails in infraction of

principles  of  natural  justice.   Additionally,  we  are  at  a  loss  to

appreciate  as  to  how  the  Disciplinary  Committee  consisting  of

members who were not familiar with the vernacular script, could

analyse  and  appreciate  the  documentary  evidence  relied  by  the

parties when the said evidence was in a language not known to

them.  Without proper analysis of those documents, the members of

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the  Disciplinary  Committee  could  not  have  arrived  at  any

conclusion, leave alone a conclusive opinion about its efficacy.

5. These infirmities in the enquiry conducted by the Disciplinary

Committee, in our opinion, are fatal.  It would necessarily follow

that the entire enquiry is vitiated.  Ordinarily, on this finding, we

would have relegated the parties before the Bar Council of India for

conducting a fresh enquiry.  However, considering the fact that the

complaint  was  made  in  1997,  that  too  by  none  other  than  the

brother of the appellants because of some family disputes and that

the  appellants  have  suffered  ignominy  for  all  this  time  due  to

pendency of enquiry against them and including the finding of guilt

recorded by the Disciplinary Committee of the Bar Council of India,

we are of the considered opinion that the matter must be put at

rest.  Accordingly, to do substantial justice, in the fact situation of

the present case, we desist from relegating the parties before the

Bar Council of India for a fresh enquiry.

6. This appeal succeeds.  The impugned order passed by the Bar

Council of India dated 05.02.2010 in BCI Tr. Case No. 150 of 2000

is set aside.    

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7. We  make  it  clear  that  if  the  appellants  have  already

deposited/paid the amount towards costs in terms of the impugned

decision,  they  shall  not  be  entitled  for  refund  thereof  from  the

respondent-complainant or the Advocates Welfare Fund of the Bar

Council of India as the case may be.   

8. No order as to costs.  

………………………………….J.    (Dipak Misra)

………………………………….J.        (A.M. Khanwilkar)

.………………………………...J.           (Mohan M. Shantanagoudar)

New Delhi, Dated: March 21, 2017