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1999 Supreme(Cal) 480
High Court Of Calcutta
VINOD KUMAR GUPTA, P. K. SEN
BROJO GOPAL BHATTACHRYYA - Appellant
Versus
BAR COUNCIL OF WEST BENGAL - Respondent
M. A. T. 440 Of 1997
Decided On : 08/30/1999
BISWANATH GHOSH, LAL MOHAN HAJRA, NADIRA PATHERIA, PARTHA SARATHI BAKSHI, SEKHAR KUMAR MUSTAFI, SIBANI DAS, SOMESH PANJA
The Disciplinary Committee of a State Bar Council loses its jurisdiction over disciplinary proceedings if it fails to conclude the proceedings within one year from the date of receipt of the complaint, and the proceedings stand automatically transferred to the Bar Council of India for disposal.
Headnote:
ADVOCATES ACT, 1961 - SECTION 35, 36B, 37 - DISCIPLINARY PROCEEDINGS - JURISDICTION - LIMITATION - BAR COUNCIL OF INDIA - AUTOMATIC TRANSFER OF PROCEEDINGS - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The appellant, an advocate enrolled with the Bar Council of West Bengal, faced disciplinary proceedings based on a complaint received by the Bar Council. The Disciplinary Committee passed an order recalling his enrolment and removing his name from the Rolls. The appellant filed a review application, which was dismissed. He then filed a writ petition challenging the orders, but the single judge dismissed it in limine, holding that an alternative remedy of statutory appeal was available.
Finding of the Court:
The court found that the impugned order was passed beyond the limitation period of one year prescribed under section 36B(1) of the Advocates Act, 1961. As a result, the Disciplinary Committee of the State Bar Council lost its jurisdiction, and the proceedings stood automatically transferred to the Bar Council of India for disposal under section 36(2) of the Act.
Issues: 1. Whether the writ petition was maintainable in light of the alternative remedy of statutory appeal. 2. Whether the Disciplinary Committee of the State Bar Council had jurisdiction to pass the impugned order beyond the limitation period prescribed under section 36B(1) of the Advocates Act, 1961.
Ratio Decidendi: 1. The court held that the writ petition was maintainable as the impugned order suffered from a patent lack of inherent jurisdiction and was in violation of a mandatory legal requirement. In such cases, the court does not insist on the petitioner availing the alternative remedy of statutory appeal. 2. The court interpreted section 36B(1) and section 36(2) of the Advocates Act, 1961, and held that once the Disciplinary Committee of the State Bar Council fails to conclude the proceedings within one year from the date of receipt of the complaint, the proceedings stand automatically transferred to the Bar Council of India for disposal. The State Bar Council loses its jurisdiction over the matter, and any order passed thereafter is without jurisdiction.
Final Decision: The court allowed the appeal, set aside the impugned orders, and directed the Bar Council of West Bengal to transmit the records of the case to the Bar Council of India for further proceedings in accordance with the law.
( 1 ) THE order dated 28th January, 1997 passed by the learned single Judge is under challenge in this appeal. The appellant before us was enrolled as an Advocate with the Respondent No. 1, Bar Council of West Bengal in terms of the Advocates Act, 1961. It appears that a complaint in respect of and against the aforesaid enrolment of the appellant was received by the said Bar Council of West Bengal. One Nirode Chandra Biswas has preferred this complaint. The complaint appears to have been made on 21. 9. 91. We do not wish to enter into the detailed facts forming the subject matter of this complaint or other relevant facts leading to the passing of the final impugned order by the Disciplinary Committee of Bar Council in view of the order that we propose to pass in this appeal. We are saying so because we do not want to make any comments in this appeal which may tend to influence the outcome of the pending proceedings, as would be seen later.
( 2 ) THE complaint dated 21. 9. 91 made by the above-referred complainant Nirode Chandra Biswas against the appellant formed the subject matter of disciplinary proceedings initiated against the appellant in terms of sec-tion 35 read with section 36b of the Advocates Act, 1961. On 11. 5. 94 accordingly, an order was passed by the Disciplinary Committee (No. 2) of the Bar Council of West Bengal whereby the enrolment of the appellant as an Advocate was re-called and his name was directed to be removed from the Rolls of the Bar Council on and from 1. 6. 94 in terms of clause (d) of sub-section (3) of section 35 of the Advocates Act. Against this order the appellant filed an application before the Bar Council under section 44 of the Advocates Act seeking review of the said order, but it appears that the Disciplinary Committee dismissed the Review application by holding that the grounds warranting any review of the said order did not exist and that there was no material on which the review could be sought. Aggrieved, the appellant by invoking the extra-ordinary writ jurisdiction of this court under Article 226 of the Constitution of India filed a writ application which, as noticed above, was dismissed in limine by the learned single Judge vide judgment dated 28th January, 1997 on the only ground that alternative remedy of filing statutory appeal agaisnt the impugned order being available to the appellant, the writ application was not maintainable.
( 3 ) A bare look at section 37 of the Act no doubt clearly suggests that any person aggrieved by an order of the Disciplinary Committee of a State Bar Council has a right of filing an appeal within 60 days from the date of the communication of the order, to the Bar Council of India. Section 37 of the Act then goes on to explain in details the modalities under which such a statutory appeal may be disposed of by the Bar Council of India. As a first impression therefore, one may tend to agree with the view of the learned single Judge that the alternative remedy of a statutory appeal under section 37 of the Act should in normal course operate as a clear bar in maintaining a writ application under Article 226 of he Constitution of India and therefore one may adopt the view that the learned single Judge was right in dismissing the writ application in limine on this ground alone. However, when we look to the facts of the present case, we find that the order dated 11. 5. 94 as passed by the Disciplinary Committee in terms of section 35 read with section 36 (B) of the Act suffered from the basic defect of total lack of inherent jurisdiction and that this order was passed in patent violation of the mandatory prescription contained in section 36 (B) of the Act. It is a very well settled principle of law that if an order patently suffers from inherent lack of jurisdiction or is in total violation of a mandatory legal requirement, this court does not insist on the petitioner availing the alternative remedy of first filing a statutory appeal and d
