VERY IMPORTANT POINT
Appellant is clearly guilty of misconduct u/s 35(3)(d) of Advocates Act, 1961 as he was and is still carrying on other business or profession apart from Advocacy but as he is a handicap person debarring him from practicing for all time is too harsh. It is just and appropriate to modify the punishment to debar the appellant from practicing upto end of December, 2000.

Headnote:(i) Advocates Act, 1961-Sections 35(3)(d), 36, 38-Appellant found guilty of carrying business of Photostat, P.C.O. and Coal-His name removed from rolls and debarred from practice-Appeal to Supreme Court u/s 38-Whether appellant is guilty of misconduct u/s 35(3)(d)? (Yes)-Subsequent conduct in appeal u/s 38 before Supreme Court also showing carrying of business by him-Whether concurrent findings of misconduct are based on evidence? (Yes).
       Held : Having perused both the orders and the evidence placed on record, we are of the view that the finding recorded holding the appellant guilty of professional misconduct is supported by and based on cogent and convincing evidence even judged by the standard required to establish misconduct as required to prove a charge in a quasi criminal case beyond reasonable doubt. We do not find any merit in the argument that the misconduct alleged against the appellant was not properly proved by the standard required to prove such a misconduct. There is also no merit in the contention that the evidence was not properly appreciated by both the Disciplinary Committees; nothing was brought on record to discredit the evidence led on behalf of the complainant and no material was placed to support the allegation of the appellant that the members of the respondent-Association had any grudge or ill-will against the appellant. (Para 12)
       Held finally : We are unable to say that the concurrent finding recorded by both the Disciplinary Committees against the appellant as to his professional misconduct, is a finding based on no evidence or is based on mere conjuncture and unwarranted inference. Hence, the same cannot be disturbed. (Para 17)
       (ii) Advocates Act, 1961-Sections 35(3)(d), 36 and 38-Appellant, a handicap, guilty of misconduct of carrying business u/s 35(3)(d)-Question of punishment in appeal u/s 38-Name removed and debarred from practice indefinitely by Bar Council-Whether punishment is disproportionate to misconduct? (Yes)-Just punishment-Debar the appellant from practicing till the end of 2000-Appeal disposed of accordingly.
       Held : What remains to be seen is whether the punishment imposed on the appellant is grossly disproportionate. Having regard to the nature of misconduct and taking note of the handicap of the appellant, in our opinion, debarring him from practising for all time is too harsh. We consider it just and appropriate to modify the punishment to debar the appellant from practising upto end of December, 2006. Except the modification of punishment as stated above, the impugned order remains undisturbed in all other respects. The appeal is disposed of in the above terms. No costs. (Para 18)

JUDGMENT

Shivaraj V. Patil, J.-The appellant has filed this appeal, under Section 38 of the Advocates Act, 1961 (hereinafter referred to as the Act ) against the judgment and order dated 4.11.1998 passed by the Disciplinary Committee of the Bar Council of India, confirming the order passed by the Disciplinary Committee of Bar Council of Punjab and Haryana removing the name of the appellant from the State s Roll of Advocates under Section 35(3)(d) of the Act.

2. The appellant was enrolled with the State Bar Council as an Advocate on 16.9.1994 vide enrolment No. P/771/94. On 9.9.1995, the respondent-association made a written complaint to the State Bar Council making allegations of misconduct against the appellant. The State Bar Council took cognizance of the complaint and referred the complaint to its Disciplinary Committee. After the completion of the proceedings in D.C.E. No. 1/1996, order was passed by the Disciplinary Committee of State Bar Council to remove the name of the appellant from the State Roll of the Advocates and the same was confirmed by the Disciplinary Committee of the Bar Council of India, in appeal. Hence this appeal.

3. The learned senior counsel for the appellant strongly contended that the allegations made in the complaint were not established or proved, judged by the standard of proof required in a case like this; the appellant was not actually carrying on business and the evidence on this point was not properly appreciated; at any rate, the punishment imposed on the appellant is grossly disproportionate even assuming that the misconduct was proved.

4. Per contra, the learned senior counsel for the respondent made submissions supporting the impugned order. He drew our attention to the evidence brought on record to show how the findings recorded against the appellant are justified. He also strongly contended that the misconduct of the appellant before and even after filing of the appeals before the Bar Council of India and this Court in continuing the business cannot be condoned; further in spite of giving undertaking before this Court, he is still continuing his business as is supported by the report of the Sub-judge made to this Court. According to him, the punishment imposed on the appellant is proper in the absence of any good ground to take any lenient view.

5. We have carefully considered these submissions.

6. The complaint contained allegations of misconduct against the appellant for the period prior to the date of enrolment as an Advocate and also subsequent to his enrolment. Since the Disciplinary Committee of the State Bar Council did not go into the allegations of misconduct pertaining to the period prior to the date of enrolment, it is unnecessary to refer to them.

7. According to the complainant, the appellant was guilty of professional misconduct as he was carrying on and continued his business and business activities even after his enrolment as an Advocate, stating thus :-

"(i) He was running a photocopier documentation center in the court compound, Pathankot, and the space for the same was allotted to the appellant in his personal capacity on account of his being handicap;

(ii) He was running a PCO/STD booth which was allotted in his name from the P & T Department under handicap quota;

(iii) He was proprietor/General Manager of the Punjab Coal Briquettes, Pathankot, a private concern and he was pursuing the business/his interest in the said business even on the date when his statement was recorded by the Disciplinary Committee on 12.5.1996."

8. The defence of the appellant was that although he was running business prior to his enrolment, he did not continue the same after his enrolment as an Advocate and he ceased to have any business interest, and that it is his father and brother who were carrying on the business after he became an Advocate under some oral arrangement. The Disciplinary Committee of the State Bar Council, after considering the ev

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