Madras High Court
3 J. Nithyasree vs Writ Petition Filed Under Article ... on 6 March, 2021
W.P. Nos.20601 & 20606 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 25.03.2022
DELIVERED ON 12.04.2022
CORAM:
THE HON’BLE MR. JUSTICE P.N. PRAKASH
and
THE HON’BLE MR. JUSTICE A.A. NAKKIRAN
W.P. No.20601 of 2021 & W.M.P. Nos.21856, 21857 & 21859 of 2021
W.P. No.20606 of 2021 & W.M.P. Nos.21863, 21865, 21866 & 21867 of 2021
1 K.J. Sumathy
2 S.J. Viswanathan
3 J. Nithyasree Petitioners in both WPs
vs.
1 The Chairman
The Bar Council of Tamil Nadu & Puducherry
High Court Campus
Chennai 600 104
2 The Secretary
The Bar Council of Tamil Nadu & Puducherry
High Court Campus
Chennai 600 104
3 The Disciplinary Committee No.VI
The Bar Council of Tamil Nadu & Puducherry
High Court Campus
Chennai 600 104 RR 1-3 in both WPs
1/18
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4 P.V. Ravi
Advocate
No.15, Kandasamy Vathiyar Street
Dharmapuri
Dharmapuri District R4 in W.P. No.20601 of 2021
4 P.K. Muthusamy
Advocate
Near Vinayaka Matriculation Hr. Sec. School
Erangadu, Dasampatti Road
Pannagaram
Dharmapuri District
(D.C.C. No.73 of 2019) R4 in W.P. No.20606 of 2021
Prayer in W.P. No.20601 of 2021:
Writ Petition filed under Article 226 of the Constitution of India seeking a
writ of certiorarified mandamus to call for the records relating to the impugned
orders of the third respondent committee proceedings in I.A. No.1 of 2020 in
D.C.C. No.375 of 2018 dated 06.03.2021 and quash the same and consequently,
allow I.A. No.1 of 2020 in D.C.C. No.375 of 2018 and appoint independent
Committee headed by Mr. R. Singgaravelan, Senior Advocate, in conducting
enquiry in D.C.C. No.375 of 2018 and dispose the same on merits and in
accordance with law within a time limit.
Prayer in W.P. No.20606 of 2021:
Writ Petition filed under Article 226 of the Constitution of India seeking a
writ of certiorarified mandamus to call for the records relating to the impugned
orders of the third respondent Committee proceedings in I.A. No.1 of 2020 in
D.C.C. No.73 of 2019 dated 06.03.2021 and quash the same and consequently,
allow I.A. No.1 of 2020 in D.C.C. No.73 of 2019 and appoint independent
Committee headed by Mr. R. Singgaravelan, Senior Advocate, in conducting
enquiry in D.C.C. No.73 of 2019 and dispose the same on merits and in
accordance with law within a time limit.
2/18
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For petitioners Mr. A. Ilayaperumal
in both WPs
For RR 1 – 3 Mr. C.K. Chandrasekar
in both WPs
For R4 in Mr. Arun Anbumani
WP No.20601/2021
For R4 in Mr. N. Manokaran
WP No.20606/2021
ORDER
P.N. PRAKASH, J.
These writ petitions have been preferred challenging the common order
dated 06.03.2021 passed by the third respondent/Disciplinary Committee in
I.A.No.1 of 2020 in D.C.C. No.375 of 2018 and I.A. No.1 of 2020 in D.C.C.No.73
of 2019 and for a direction to appoint an independent Committee headed by
Mr.R.Singgaravelan, Senior Advocate, in conducting enquiries in D.C.C. Nos.375
of 2018 and 73 of 2019 and dispose the same on merits and in accordance with
law within a time frame.
2 The legal issue that is required to be decided in the instant writ
petitions lies in a very narrow compass.
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2.1 One T.S. Varadhammal was owning 25 acres of land in S.No.867/2 in
Adhiyamankottai Village, which lands would be referred to as the subject property,
for the sake of convenience. The said Varadhammal gave a power of attorney to
her son Jagannathan to manage the subject property.
2.2 While so, one Nagaraj, a local politician, entered into a loan
agreement dated 05.04.2004 with one Rajendran projecting that the former is the
owner of the subject property and that the former is giving the subject property as
a collateral security for a loan of Rs.4 lakhs received from the latter. The loan
agreement dated 05.04.2004 contained an arbitration clause. On a contrived
premise that a dispute has arisen between the said Nagaraj and Rajendran, a
collusive arbitration proceeding was initiated in conspiracy with some advocates
and a fictitious award was passed on 31.10.2014 in the said arbitration proceeding,
viz., AR.O.P. No.36 of 2014 in respect of the subject property. The said fake
award directed Nagaraj to execute a sale deed in respect of the subject property in
favour of Rajendran.
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2.3 On coming to know of this, Jagannathan approached the police and
lodged a complaint, based on which, a case in Dharmapuri D.C.B. Cr. No.1 of
2018 was registered. Enquiries conducted by Jagannathan revealed that Nagaraj
and Rajendran were not alone in this adventure and that they were actively assisted
by three advocates, viz., Rajaram, Ravi and Muthusamy. Therefore, Jagannathan
lodged complaints against these three advocates in the Bar Council of Tamil Nadu
and Puducherry (for short “the Bar Council”).
2.4 The Bar Council, by order dated 03.09.2019, suspended Rajaram,
Ravi and Muthusamy from practice, pending disposal of the disciplinary
proceedings in D.C.C. Nos.74 of 2019, 375 of 2018 and 73 of 2019 as against
Rajaram, Ravi and Muthusamy, respectively.
2.5 Apprehending that the proceedings before the Bar Council will not be
fair, Jagannathan filed a writ petition being W.P. No.29861 of 2019 for a
mandamus to constitute an independent Committee under Mr. R. Singgaravelan,
Senior Advocate, for conducting enquiries in D.C.C. Nos. 375 of 2018, 73 of 2019
and 74 of 2019 in an impartial manner.
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2.6 During the pendency of the said writ petition, Ravi and Muthusamy
filed interlocutory applications in their respective disciplinary proceedings before
the Bar Council for revoking the order of suspension.
2.7 Apprehending that the Bar Council is likely to revoke their
suspension, Jagannathan filed W.P. Nos.5778 and 5781 of 2020 for a prohibition
restraining the Disciplinary Committee of the Bar Council from revoking the
suspension order of Ravi and Muthusamy, respectively.
2.8 A Division Bench of this Court heard W.P. Nos.5778 and 5781 of
2020 and noticing the seriousness of the allegations against the advocates, by order
dated 13.03.2020, stayed the two interlocutory applications that were filed by Ravi
and Muthusamy before the Bar Council, thereby, restraining the Bar Council from
revoking the suspension order of Ravi and Muthusamy. The Division Bench also
directed the Disciplinary Committee to proceed with the disciplinary proceedings
against the said advocates.
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2.9 While that being so, Jagannathan died on 04.10.2020. Therefore, his
widow and two children filed two applications before the Bar Council for getting
themselves substituted in the name of Jagannathan and for continuing the
disciplinary proceedings in D.C.C. Nos.375 of 2018 and 73 of 2019 against Ravi
and Muthusamy, respectively.
2.10 The interlocutory applications that were filed by the legal heirs of
Jagannathan were numbered as I.A. No.1 of 2020 in D.C. No.375 of 2018 (Ravi's
case) and I.A. No.1 of 2020 in D.C.C. No.73 of 2019 (Muthusamy's case).
2.11 These interlocutory applications were dismissed on 06.03.2021 by the
third respondent, viz., the Disciplinary Committee of the Bar Council, by holding
that the legal heirs of Jagannathan cannot step into the shoes of Jagannathan and
continue the disciplinary proceedings against the said two advocates. In view of
the dismissal of the interlocutory applications filed by the legal heirs of
Jagannathan, viz., the petitioners herein, to continue the disciplinary proceedings
against the two advocates, the disciplinary proceedings stood closed and as a
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sequel, the suspension order also came to an end and consequently, the two
advocates have resumed their practice.
2.12 Challenging the said common order dated 06.03.2021, the legal heirs
of Jagannathan have filed the instant writ petitions seeking the relief stated in the
opening paragraph.
3 On notice, Mr. Arun Anbumani, learned counsel, entered appearance
for Ravi, fourth respondent in W.P. No.20601 of 2021 and a counter affidavit
dated 10.03.2022 has been filed by Ravi. Likewise, Mr. N. Manokaran, learned
counsel, entered appearance for Muthusamy, fourth respondent in W.P.No.20606
of 2021 and a counter affidavit dated 28.01.2022 has been filed by Muthusamy.
4 Heard Mr.A. Ilayaperumal, learned counsel for the petitioners,
Mr.C.K. Chandrasekar, learned counsel for the Bar Council, Mr. Arun Anbumani,
learned counsel for Ravi, the fourth respondent in W.P. No.20601 of 2021 and
Mr.N. Manokaran, learned counsel for Muthusamy, the fourth respondent in
W.P.No.20606 of 2021.
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5 Mr. Ilayaperumal, learned counsel for the petitioners, submitted that
the reasons assigned by the Bar Council are ex facie unsustainable because even in
a criminal proceeding, only if the accused dies, can the prosecution abate and not
when the complainant dies. He further submitted that the death of the complainant
can, by no stretch of imagination, enure to the advantage of the fourth
respondents/advocates.
6 Mr. Arun Anbumani, learned counsel for Ravi, placed reliance upon
the judgment of the Supreme Court in An Advocate vs. Bar Council of India and
another [1989 Supp. (2) SCC 25] in support of the reasons assigned by the
Disciplinary Committee in the impugned order that the disciplinary proceedings
before the Bar Council are quasi-criminal in nature. The relevant portion from the
said judgment reads thus:
“4. At this juncture it is appropriate to articulate some basic
principles which must inform the disciplinary proceedings against members
of the legal profession in proceedings under Section 35 of the Advocates
Act, read with the relevant Rules:
(i) ............
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(ii) as a logical corollary it follows that the Disciplinary
Committee empowered to conduct the enquiry and to inflict the punishment
on behalf of the body, in forming an opinion must be guided by the doctrine
of benefit of doubt and is under an obligation to record a finding of guilt
only upon being satisfied beyond reasonable doubt. It would be
impermissible to reach a conclusion on the basis of preponderance of
evidence or on the basis of surmise, conjecture or suspicion. It will also be
essential to consider the dimension regarding mens rea.”
7 Mr. N. Manokaran, learned counsel for Muthusamy, submitted that
the substitution petition that was filed by the petitioners under Order XXII Rule 3
C.P.C. cannot be maintained as that provision would not apply to proceedings
before the Bar Council. According to him, the Disciplinary Committee has only
the powers of a Civil Court that have been enumerated in Section 42 of the
Advocates Act, 1961 and Order XXII has not been enumerated in Section 42, ibid.
He further submitted that Muthusamy had no role to play in the fake arbitration
proceedings and that he had only filed E.P. No.36 of 2016 based on the arbitral
award, for which, he cannot be made to face disciplinary proceedings. That apart,
placing reliance on the judgment of the Supreme Court in Sundaram Finance Ltd.
vs. Abdul Samad and another (2018) 3 SCC 622, he contended that an arbitral
award can be enforced in the place where the property is located and that is why,
Muthusamy had filed the execution petition in the jurisdictional Court for
enforcing the arbitral award.
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8 This Court gave its anxious consideration to the rival submissions.
9 At the outset, it is made clear that this Court is not examining the
merits of the complaint against the two advocates/fourth respondents and is
confining itself to deciding on the legal validity of the impugned common order
disallowing the legal heirs of Jagannathan to continue with the disciplinary
proceedings, as a consequence of demise of the said Jagannathan.
10 It is true that in An Advocate (supra), the Supreme Court Court has
held that the proceedings before the Bar Council are quasi-criminal in character. It
was held so in the idea of importing the doctrine of benefit of doubt, which governs
criminal prosecutions, into disciplinary proceedings before the Bar Council. This
is evident from a reading of paragraph 4(ii) of An Advocate (supra). Be it noted,
in An Advocate (supra), the Supreme Court was not dealing with a case in which
the complaint was dismissed on the ground that the complainant had died.
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11 The reasons set out by the Disciplinary Committee in paragraph 8 of
the impugned order run thus:
“This Forum hold that the disciplinary proceedings before the Bar
Council are Quasi-Criminal in nature. In fact there is no estate to claim in
proceedings as in civil case to include the legal heirs to inherit estate. Hence,
legal heirs of the complainant cannot be impleaded into the present
complaint as the disciplinary proceedings are Quasi-Criminal in nature.”
We are, to say the least, baffled by the aforesaid conclusions. We are also at a loss
to understand the import of the observation in the second sentence of the aforesaid
passage which appears to be legally and linguistically incomprehensible. The
Disciplinary Committee appears to have been blissfully ignorant of Part VII of the
Bar Council of India Rules, which sets out the procedure to be followed by the
Disciplinary Committee while enquiring into a complaint of misconduct.
12 Rule 11 of Chapter I in Part VII of the Bar Council of India Rules
reads as follows:
“11 (1) If in any enquiry pending before the Disciplinary Committee,
the complainant dies and there is no representative who is willing to conduct
the case on his behalf, the Disciplinary Committee may, having regard to
the allegations made in the complaint and the evidence available, make a
suitable order either to proceed with the enquiry or to drop it.
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(2) (a) In the case of an enquiry against only one advocate, on his death the
Disciplinary Committee shall record the fact of such death and drop the
proceedings.
(b) Where the enquiry is against more than one advocate, on the death of
one of them, the Disciplinary Committee may continue the enquiry against
the other advocate unless it decides otherwise.”
13 From a mere perusal of Rule 11(1), it is limpid that the Disciplinary
Committee is not powerless to proceed with the enquiry even in a case where the
complainant dies and there is no legal representative who is willing to conduct the
case. In other words, where the legal representatives of the complainant do not
come forward to substitute themselves in place of the deceased complainant, the
Disciplinary Committee is given the discretion to either proceed with the enquiry or
to drop it. Thus, even where there is none to prosecute a case before the
Disciplinary Committee, the complaint cannot be mechanically dropped on the
technical ground that it has abated. The logical sequitur is that where the legal
heirs have come forward to prosecute the complaint in place of the deceased, the
Disciplinary Committee is not powerless to order substitution and, at any rate,
cannot reject their request on the specious ground of abatement.
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14 That apart, under Rule 11(2)(a), the enquiry can be dropped only in
cases where the enquiry is against one Advocate who has died during the enquiry.
This is for the obvious reason that even if the enquiry is completed and misconduct
is proved, the various punishments prescribed under Section 35(3)(b) (c) and (d)
of the Advocates Act, 1961, cannot be inflicted if the Advocate is dead. This
conclusion is fortified by Rule 11(2)(b) which makes it clear that where the
enquiry is against more than one advocate, on the death of one of them, the
Disciplinary Committee may still continue the enquiry against the other
advocate(s), unless it decides otherwise.
15 In the case at hand, the Disciplinary Committee appears to have been
greatly swayed by the fact that the proceedings before them were quasi-criminal in
nature, and that the legal heirs of the complainant cannot be substituted in place of
the original complainant for that reason. This conclusion betrays woeful ignorance
of the settled position in criminal law that the legal heirs can apply for continuation
of the proceedings against the accused upon the death of the original complainant.
The issue is no longer res integra in view of the decision of the Supreme Court in
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Rashida Kamaluddin Syed vs. Shaikh Saheblal Mardan, [(2007) 3 SCC 548]
wherein it was observed as under:
“From the above case-law, in our opinion, it is clear that on the death
of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons
of the complainant to apply for continuation of proceedings against the
accused persons. By granting such prayer, no illegality has been committed
by the courts.”
It follows that the reasons set out by the Disciplinary Committee in the impugned
order for rejecting I.A. Nos.1 & 1 of 2020 are completely illegal and perverse.
16 Finally, Mr. Manokaran, learned counsel for Muthusamy, contended
that the remedy for the petitioner is to file an appeal under Section 37 of the
Advocates Act before the Bar Council of India and not a writ petition before this
Court. The answer to this argument is available in the recent judgment in Magadh
Sugar and Energy Limited vs. State of Bihar and others [2021 SCC OnLine
801], wherein, the Supreme Court has held that if the order or proceedings under
challenge is wholly sans jurisdiction, the High Court is not powerless to issue an
appropriate writ. In the instant case, as stated above, the Disciplinary Committee
has acted sans jurisdiction by ignoring Rules 11(1) and 11(2)(a) of the Bar Council
of India Rules in dismissing the application of the legal heirs of Jagannathan to
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continue the disciplinary proceedings and therefore, it is well within the power of
this Court to correct the said error by issuance of a writ of certiorarified mandamus
as prayed for by the petitioners.
17 In view of the aforesaid discussion, the writ petitions are allowed and
the impugned order dated 06.03.2021 passed by the Disciplinary Committee in
I.A. Nos.1 & 1 of 2020 in D.C.C. No. 375 of 2018 and D.C.C. No. 73 of 2019 are
quashed. Consequently, the closure of D.C.C. No.375 of 2018 and D.C.C.No.73
of 2019 by the Disciplinary Committee is quashed. I.A. Nos. 1 & 1 of 2020 are
allowed and the petitioners will stand substituted in place of the deceased
Jagannathan. The Disciplinary Committee will now proceed with the complaint
from the stage at which proceedings were discontinued on account of the demise of
Jagannathan.
18 Having regard to the trajectory of this case, we are of the considered
view that the interests of justice would be better subserved by directing the first
respondent to re-constitute the Disciplinary Committee from and out of persons
other than the members of the earlier Disciplinary Committee which passed the
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impugned order dated 06.03.2021. The re-constituted Committee shall complete
the enquiry within a period of three months from the date of its reconstitution by
the first respondent.
With the aforesaid observations and directions, both the writ petitions are
allowed. Costs made easy.
(P.N.P., J.) (A.A.N., J.)
12.04.2022
cad
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P.N. PRAKASH, J.
and
A.A. NAKKIRAN, J.
cad
To
1 The Chairman
The Bar Council of Tamil Nadu & Puducherry
High Court Campus
Chennai 600 104
2 The Secretary
The Bar Council of Tamil Nadu & Puducherry
High Court Campus
Chennai 600 104
3 The Disciplinary Committee No.VI
The Bar Council of Tamil Nadu & Puducherry
High Court Campus
Chennai 600 104
4 The Public Prosecutor
Madras High Court
Chennai 600 104
W.P. Nos.20601 & 20606 of 2021
12.04.2022
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