1999 Supreme(SC) 129

1999(1) Supreme 289
Supreme Court of India
(From Disciplinary Committee of the Bar Council of India)
S.B. Majmudar & R.P. Sethi, JJ.
Baldev Singh Dhingra & Ors. -Appellants
versus
Madan Lal Gupta & Ors. -Respondents
Civil Appeal No. 2478 of 1989
Decided on 4-2-1999
Counsel for the Parties :
For the Appellants : B.D, Aggarwala, Sr. Advocate, Davender Gupta, K.K. Misra, Anish Dayal, B.D. Sharma, Advocates.
For the Respondents : Kapil Sibbal, Sr. Adv., Ranjit Kumar, Chandra Bhushan Pd., and Rajendra Pd. Saxena, Advocates.

Important Points
1. Professional misconduct as laid down in Section 35(1) of the Advo­cates Act can rope in practising Advocates who commit either ‘profes­sional misconduct’ or any other ‘misconduct’.
2. A person while practising law might commit any ‘other misconduct’ which may not necessarily be ‘professional misconduct’. For example, if a practis­ing 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 or any other misconduct while not acting as an advocate, still he may have to fact the music under Section 35(1) provided at the time when he 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.
3. If the name of 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 resumes practice at a later point of time.

Headnote:(i) Advocates Act, 1961-Sec­tion 35(1) read with Section 24A (as it stood prior to 1993)-Profes­sional or other misconduct-Res­pondent Advocate got his practice suspended in 1972 on his selection as judi­cial officer-Dis­missed from service on charge of corruption as well as misconduct unbecoming of a judicial officer - Permitted to resume practice by State Bar Council in 1977-Complaint by some members of Bar under Section 35(1) alleging that respondent was unfit to continue as an Advocate being guilty of such other misconduct when he was dismissed from judicial service on proved misconduct of corruption-Held: Alleged misconduct committed when he was not practicing as Advo­cate-Complaint u/s 35(1) legally not maintainable-Section 24A(1) (a) not attracted as he could not be said to be convicted for any criminal Act-Section 24A(1)(c) not attracted as it was not in statute book at relevant time.

       Held : A mere look at sub-section (1) of Section 35 shows that the 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 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 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 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 ‘professional misconduct’ or ‘other misconduct’. It is obvious that ‘professional misconduct’ cannot be committed by anyone who is not practising the profession of law being an advocate 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 be ‘profes­sional misconduct’. For example, if a practis­ing 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 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 he 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. (Para 6)

       Provisions of Section 17 clearly indicate that on the “State roll” of advocates maintained by the State Bar Council, the names 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. 1’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 the time when he is alleged to have committed the misconduct in question. This conclusion also becomes obvious in the light of Section 35(3) which entitles the disciplinary committee of a State Bar Council, after giving the 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 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 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 he will be permanently debarred from practising. 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 name is on the roll of the State Bar Council concerned. (Para 7)

       ‘Professional misconduct’ as laid down in Section 35(1) of the Act can rope in practising advocates who commit either ‘professional miscon­duct’ or 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. 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.

        (Paras 9 & 10)

       In the instant case the first ingredient alleged is estab­lished, as admittedly Res­pondent No. 1 during the time he was a judi­cial officer had committed a misconduct of being found guilty of the charges of corruption in the departmental inquiry held by the High Court and which culminated 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. (Para 11)

       Provisions of Rule 5 of Chapter III leave no room for doubt that when a practising advocate ceases to practise, he has to surrender his certificate of 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 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, 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 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. 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 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 alleged 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 learned counsel for the appellants did not place reliance on Section 24-A(1)(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 even though he was dismissed form service after departmental inquiry. (Para 12)

       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 recapitulate 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 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. (Para 13)

       Section 35(1) will have to be read with Section 33. Thus, enrollment 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 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 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 disciplinary committee of the Bar Council to consider further question of imposing any punishment on him as per sub-section (3) of Section 35. (Para 14)

       (ii) Advocates Act, 1961-Sec­tion 35(1)-Professional or other miscon­duct-Whether include misconduct committed by an Advocate not in his capacity as professional-Held, Yes. (Paras 6 & 8)