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2005 Supreme(Gau) 374
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
S. Medhi – Appellants
Vs.
Bar Council of Assam and Ors. – Respondent
Civil Rule No. 3004 of 1997
Decided On: 12.05.2005
For Appellant/Petitioner/Plaintiff: D.K. Mishra, Adv.
For Respondents/Defendant: D.P. Chaliha and S.S. Dey, Advs.
The Bar Council can proceed against an advocate only when it has reasons to believe that the advocate is guilty of professional or other misconduct, and the power to issue a show cause notice is not provided for in Section 35 of the Advocates Act.
Headnote:
Bar Council - Disciplinary Action - Advocates Act, 1961, Section 35
Fact of the Case:
The petitioner, Assam State Co-operative Marketing and Consumer Federation Ltd., challenged the observations made by the High Court and the notice issued by the Bar Council regarding non-deposit of court fees. The petitioner sought relief against the notice issued by the Bar Council.
Finding of the Court:
The court found that the Bar Council had issued the notice without having any reason to believe that the petitioner was guilty of professional or other misconduct. The court concluded that the materials on record did not justify the issuance of the show cause notice and set aside and quashed the impugned notice.
Issues: Legality and correctness of the observations made by the High Court, and the legality of the notice issued by the Bar Council.
Ratio Decidendi: The Bar Council can proceed against an advocate only when it has reasons to believe that the advocate is guilty of professional or other misconduct. The court emphasized that the power to issue a show cause notice is not provided for in Section 35 of the Advocates Act, and the materials on record did not justify the notice issued by the Bar Council.
Final Decision: The writ petition was partly allowed, and the impugned notice was set aside and quashed. The Bar Council was given the liberty to call for comments from the petitioner in accordance with the provisions of the Act.
I.A. Ansari, J.
1. In a series of money appeals filed by the Assam State Co-operative Marketing and Consumer Federation Ltd., the learned Single Judge of the High Court, while admitting the appeals on 19.06.96, made certain observations, which have serious bearing on, and are of immense importance in, this writ petition. For the sake of brevity, the relevant portions of the observations are quoted herein below:
It has become my painful duty to refer the matter to the Bar Council for appropriate action against the person found guilty. The facts in this case show a very deplorable state of affairs. The Appellant herein is Assam State Co-operative Marketing and Consumer Federation Ltd. The Appellant in order to file suits gave different amounts to the Lawyer and the amount was received by the Lawyers but putting signature on the documents which have been produced before me as well be evident from Annexure A and B respectively. But it is seen that the deficit court fee was not paid for a period of 6-8 years and ultimately when these suits were transferred to the Railway Claims Tribunal at Guwahati Bench from the Civil Court, all these suits were dismissed for non-payment of deficit Court Fees.... All these amount of Court fee were paid to the Lawyer m the panel. The Lawyer involved in all the cases is Shri S. Medhi, Advocate in the panel of STATEFED at Guwahati. The money/court fee was also received by some of his juniors by putting their signatures. It is difficult to find out the name of the advocate from the signatures put therein, but some names are-one A.C. Sharma, Advocate, and A.C. Bharali and also A. Chakravorty, all perhaps juniors to Shri S. Medhi.
Prima facie it appears to be a gross dereliction of duty. Accordingly Bar Council may take appropriate action. I have referred the matter to the Bar Council inasmuch as if I do not do it, that will mean closing my eyes to the illegalities which I cannot do.
2. Acting upon the observations made in the order, dated 19.06.96, aforementioned, Respondent herein, namely, the Bar Council of Assam, Meghalaya, Manipur, Tripura, Nagaland, Mizoram and Arunachal Pradesh, (In short, 'the Bar Council') issued a notice, dated 29.05.1997, addressed to the writ Petitioner. The relevant portions of this notice run as follows:
I am directed to enclose herewith a copy of the order dated 19.06.96 passed by the Hon'ble High Court making allegations against you regarding non-deposit of Court fees in the case mentioned in the order.
You are hereby asked to show cause within 20th June, 1997, why disciplinary proceedings should not be drawn up against you.
3. Challenging the legality and correctness of the observations made by the learned Single Judge in his order, dated 19.06.96, aforementioned, and also terming the notice, dated 29.05.97, issued by the Bar Council as illegal and impermissible, the Petitioner has approached this Court, with the help of the present application made under Article 226 of the Constitution of India, to get, inter alia, the remarks made in the order, dated 19.06.1996, aforementioned expunged and the notice, dated 29.05.1997, aforementioned set aside and quashed.
4. I have heard Mr. D.K. Mishra, learned Senior counsel, assisted by Mr. S. Baruah, learned Counsel, for the Petitioner, and Mr. D.P. Chaliha, learned Senior counsel, assisted by Mrs. J. Rajkumari, learned Counsel, for the Respondent No. 1. None has appeared on behalf of the remaining Respondents. I have also heard Mr. S.S. Dey, learned Counsel, who has assisted this Court as an amicus curiae.
5. To be fair enough to the Petitioner, it may be pointed out, at the very outset, that though the Petitioner had sought for directions from this Court expunging the remarks made against him in the order, dated 19.06.96, aforementioned, this prayer has not been pursued and Mr. D.K. Mishra, learned Senior counsel appearing on behalf of the Petitioner, candidly submits that the Petitioner, in this writ petition, seek relief only
