IMPORTANT POINT
Where an Advocate was suspended from practice for the three years but he practiced in another name and again for the misconduct he was suspended for three years by the Bar Council of India as against the punishment of admonition imposed by State Bar Council, but on review BCI reversed the punishment in to one of admonition , it was held that the misconduct being very grave, the manner in which BCI in the review order had gone into question of misconduct as well as question of punishment was very casual and unsatis-factory and BCI was directed to issue fresh order of prohibition of three Years.

Headnote:Advocate Act, 1961-Section 35 read with 44-Punishment for misconduct-Quantum of punishment-Advocate suspended from practice on proved misconduct-Practical during suspension period in another name-Fresh complaint-Complainant Produced evidence showing appearance of suspended advocate in four cases-Suppression of materials facts about his conviction under Norcoric drugs Act prior to enrolment also brought to notice of disciplinary committee-Disciplinary Committee passed punishment of admonition-On appeal Bar Council of India suspended him from practice for three years again-Review petition by Advocate-BCI holding that filing of vakalat after first suspension was a solitary instance and suppressin of material facts at time of enrolment was not part of complaint reversed punishment into administration - Not justified -Vakalt filed after first punishment in different names in four cases though related to same party-Witnesses on conviction produced before disciplinary Committee and advocate given opportinity to erois examine nut not availed by him-Misconduct very grave-Review of its earlier order of by BCI very casual and unsatisfactory-BCI directed to issue fresh orders and prohibition of three years.
       Held : The Bar Council of India in the order under review was not right in treating the case as a single instnace ignoring the fact that there the first respondent had filed the vakalatnamas or apperared in the Courts during the relevant period. Further in regard to the suppression of facts relating to his conviction, the Bar council of India in its review order committed yet another serious mistake. Though the issue reltaing to his conviction was not specifically reaised in the original complaint there were two issues framed by the Delhi Bar Council. One of them related to the supression of facts relating to this conviction. Evidence was allowed to be led and the documents pertaining to the first respondent’s conviction were marked as exhibits. The first respondent had opportunity to cross examine the witnesses in relation to the documents pertaining to his conviction but he did not even choose to cross examine the witnesses. Nor did he produce any evidence to disporve that he was convicted. It is well-settled that notwithstanding the absence of pleadings before a court or authority, still if an issue is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an oppotunity to produce evidence or cross examine witnesses in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later. The Bar Council of India therefore in the review order erred ingnoring in the finding of the Delhi Bar Council on the question of the supression of facts relating to conviction of the first respondent. Yet another serious mistake committed by the Bar Council of India in the review order was that it had not given any serious consideration to the respondent changing his name from “Pritam Singh” to P.S. Madan” and practising under the latter name. Such a conduct clearly disclosed an intention to hoodwink the Bar Council of India which had earlier suspended him from practice for three years. Further inasmuch as the notification regarding suspension was specifically communicated to him as stated earlier, it was not permissible for the respondent to plead ignorance of the order of suspension and continue to practice during the period of prohibition. (Paras 11 & 12)
       In the initial order passed by the Bar Council of India on 4.10.91, in the appeal preferred by the appellant, the Bar Council of India had given adequate reasons for the suspension for three years. In our view the misconduct on the part of the first respondent was very grave and the Bar Council of India in its initial order dt. 4.10.91 was perfectly justified in imposing the punishment of suspension for three years. The manner in which the Bar Council of India in the review order had gone into the question of misconduct as well as the quantum of punishment in our opinion, was wery casual and unsatisfactory. It had not given enough seriouness to the two items of misconduct proved against the first respondent and particularly in his violating an order of the Bar Council of India itself and in practising in a different name throughout the relevant period. For the aforesaid reasons, we set aside the order of the Bar Council of India passed in review dt. 27.2.92 and restore the order of the Bar Council of India dt. 4.10.91. We directt that a fresh order of prohibition of three years from practise should be issued by the Bar Council of Delhi by way of a notification in the in the prescribed manner and to publish the same and also see that it is served personally on the first respondent. (Paras 13, 14 & 15)
       Where an Advocate was suspended from practice for three years but he practiced in another name and again for the misconduct he was suspended for three years by the Bar Council of India as against the punishment of admonition imposed by State Bar Council, but no review BCI reversed the punishment. in to one of admonition, it was held that the misconduct being very grave, the manner in which BCI in the review order had gone into question of misconduct as well as question of punishment was very casual and unsatisfactory and BCI was directed to issue fresh order of prohibition of three years.

Order

M. Jagannadhar Rao & A.P. Misra, JJ.-This is an appeal filed by a complainant against orders passed by the Bar Council of India on 27.4.92 in a review petition filed by the first respondent-advocate whereby the review was allowed and the order passed by the Bar Council of India dt. 4.10.1991 was set aside and the order of the Delhi Bar Council dt. 2.5.90 was restored.

2. In this appeal, notice was ordered on 1.11.93 and the first respondent was served and he also filed a counter. Thereafter the petitioner complaint filed a rejoinder dt. 18.3.94. The matter came up for hearing in this court on 29.1.99 and was heard for considerable time when neither the first respondent nor his counsel Mr. N.S. Bisht were present. After more than an hour and half the said counsel appeared and represented that the file was taken by the first respondent from him two months earlier on the ground that the first respondent wanted to engage another counsel and thereafter no instructions were given to him (Mr. Bisht). In these circumstances, we adjourned the matter and directed fresh notice to the first respondent at house No. 190, first floor, Gautam Nagar, New Delhi and informed him that if he does not appear the case would be proceeded ex-parte. The office has now filed a report dt. 8.2.99 that this court’s order dt. 21.1.99 has been complied with and notice was issued to the first respondent and acknowledgement was also received. It is further stated that none is appearing on behalf of the first respondent. After some adjournments, the matter has come up again today and neither the first respondent nor his counsel are present. Thereafter, we have no choice but to dispose of the matter upon hearing the arguments of the learned counsel for the appellant and taking into account the counter filed on behalf of the first respondent and the further rejoinder filed by the appellant.

3. The facts of the case are that on 29.11.1984 the Bar Council of Delhi held Sri Pritam Singh the first respondent guilty of professional misconduct and suspended him from practice for a period of three years. The first respondent filed an appeal in this court and obtained stay of the said order of the Bar Council of Delhi. The appeal preferred by the first respondent before the Bar Council of India was dismissed on 13-12-1986 and a notification was issued on 22.1.1987, the operative portion of which reads as follows:

“Therefore Shri Pritam Singh, Advocate enrolled that his counsel YD No. D/300 by 1.9.1983 is suspended from practising as an Advocate for a period of three years from the expirty of 16.9.1996.”

4. This notification dt. 22.1.1987 was communicated among others to the first respondent as is disclosed from the said notification itself.

5. The appellant filed a complaint before the Delhi Bar Council that notwithstanding the order of suspension of the respondent for the period from 16.9.1986 to16.9.1989, the first respondent continued to practice in violation of the order of the Bar Council of India and even after the above notification and that he thereby committed fresh misconduct with was liable to be punished. The first respondent filed a reply before the Bar council of Delhi and thereafter, an order was passed on 2.5.90 by the Bar Council of Delhi holding the respondent guilty of professional misconduct inasmuch as he continued to practise during the period of suspension by another name “P.S. Madan” instead of “Pritam Singh”. One other matter in regard to which the Delhi Bar Council held guilty states was that the first respondent had concealed material facts at the time of his enrolment, in regard to an earlier conviction by a criminal court. It was proved that the first respondent was convicted for an offence under Narcotics Drugs Act and was sentenced to six months imprisonment. (In fact he was earlier in service and was compulsorrly retired.) The Delhi Bar Council noticed that the first respondent was convicted by the Court of Mr. T.S. Oberoi on 4.12.

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