Madras High Court
M.Sathish Kumar vs The Chairman on 23 February, 2022
WP No.25522 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE MRS.JUSTICE S. KANNAMMAL
W.P.No.25522 of 2021
and
W.M.P.No.26948 of 2021
M.Sathish Kumar .. Petitioner
Vs.
1. The Chairman,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
2. The Secretary,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
3. The Registrar,
Disciplinary Committee,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
4. The Disciplinary Committee No.VII,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
5. R.Shylanthekumar .. Respondent
***
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WP No.25522 of 2021
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari calling for the entire records in
pursuant to the Resolution No.252/2021 dated 30.07.2021 passed by the
third respondent disciplinary committee of Bar Council of Tamil Nadu and
Puducherry and quash the same.
***
For Petitioner : Mr.T.P.Prabakaran
and Mr.D.Ajith Kumar
For Respondents : Mr.C.K.Chandrasekaran
Standing Counsel for RR1 to 4
Mr.V.Raman Reddy for R5
JUDGMENT
[Judgment of this Court was delivered by PUSHPA SATHYANARAYANA, J.]
A Member of the Bar Council of Tamil Nadu and Puducherry invoked
the writ jurisdiction of this Court in this writ petition seeking to quash the
Resolution No.252 of 2021 dated 30.07.2021 passed by the third
respondent.
2. The short and relevant facts culled out from the affidavit filed
by the petitioner are that the petitioner got himself enrolled with the Bar
Council of Tamil Nadu and Puducherry (in short, "BCTNP") on 19.12.2007
and his enrollment number is Ms.No.3219/2007 and he has been practising
before this Court ; that the father of the petitioner, who served in the
Southern Railway, is a neighbour to the first respondent, who was also a
Railway Employee ; that the first respondent gave a complaint dated
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WP No.25522 of 2021
22.07.2020 against the petitioner before the BCTNP, which was assigned
No.192/2020, and vide letter Confl.No.1700/2020, dated 17.08.2020, he
was asked to submit comments on the same ; that the petitioner submitted
his comments vide reply dated 28.08.2020, but without considering the
same in its proper perspective, the petitioner was directed to appear before
the fourth respondent on 20.11.2021 for hearing ; and that the petitioner
laid this writ petition praying to quash the resolution taking cognisance of
the complaint.
3. The case of the fifth respondent before the Bar Council and
before this Court is that the petitioner's father Mr.A.Mohan and himself
were neighbours for around 40 years and in the year 2006, Mr.Mohan sold
his house in favour of the fifth respondent vide sale deed No.6645/06,
dated 10.01.2006 and on their request, in good faith, he allowed the
petitioner family to live in the said house. Now the petitioner has been
intimating him under the guise that he is an Advocate and refused to
vacate and give possession of the property. When he approached the police
officials, he was told that it was a civil matter. Since the fifth respondent
wanted to perform his son's marriage and wanted the premises for their
use, he asked the petitioner's father to vacate the house, which proved
futile. In such backdrop, he filed the subject complaint before the BCTNP,
inter alia, requesting to find out the proper qualification of the petitioner.
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WP No.25522 of 2021
4. Learned counsel for the petitioner contended that the fifth
respondent is an usurious moneylender and the petitioner's father was one
of the victims at his hands and the subject sale transaction is a sham and
nominal one due to the said loan transaction and there is a long dispute in
this regard between the parties. It is contended that the complaint is a
false, fraudulent, baseless and vexatious one and the petitioner has role to
play in the entire episode. Learned counsel submitted that instead of taking
up appropriate civil proceedings, without any basis, the fifth respondent
filed the complaint, which led to the passing of the impugned resolution.
4.1. Learned counsel for the petitioner relied on the following
judgments in support of his contentions :
i. Nandlal Khodidas Barot V. Bar Council of Gujarat and
Others, 1981 SCC Cri 255 ;
ii. N.S.Varadachari V. The Bar Concil of Tamil Nadu rep.
by its Secretary and Others, (W.P.No.14284 of 2000,
dated 22.12.2010) ; and
iii. Shakti Swarup Nigam and Another V. Bar Council of
U.P. and Another, (Civil Misc.WP No.54966 of 2008,
dated 11.12.2015).
5. Relying on the counter-affidavit filed by the second respondent,
the learned Standing Counsel for the respondents 1 to 4 contended that
the General Council of the BCTNP, after going through the papers, passed
the resolution referring the complaint of the fifth respondent to the
Disciplinary Committee for enquiry and disposal in terms of Section 35 of
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WP No.25522 of 2021
the Advocates Act, 1961 (in short, "the Act") and it is for the petitioner to
raise all the grounds and grievances before the Disciplinary Committee,
which would be considered in accordance with law, but without doing so,
the petitioner rushed to this Court. It is his submission that the judgments
referred to by the learned counsel for the petitioner have no application to
the facts of the case on hand.
6. Learned counsel for the fifth respondent submitted that the
petitioner has caused so much of mental agony to the fifth respondent
using his professional capacity, which necessitated him to file the present
complaint and there is nothing in the resolution passed by the BCTNP, as
per Section 35 of the Act and prays to dismiss the writ petition.
7. Heard the learned counsel on either side and perused the
materials placed before this Court.
8. Legal Profession is a learned, noble and independent
profession. Many of Freedom fighters are Lawyers. It is said, “Law,
without lawyer, loses its locomotion; lawyer, without law, misses its
function”. The lawyer is also called an Officer of Justice apart from Officer
of the court. Every member of the Bar is an honourable person, because he
has to discharge social responsibilities. An advocate should continue to
enjoy the confidence not only of his client, but also of the Court and the
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WP No.25522 of 2021
Bar by his moral excellence. They should be responsible citizens.
9. It is to be stated that the father of the petitioner and the fifth
respondent were railway employees and they are neighbours for about 40
years. The father of the petitioner sold his property to the fifth respondent,
who in turn, allowed the petitioner's family to continue in the sold out
property. When he wanted the property for his son, they refused to vacate
and handover possession. It is the claim of the petitioner that the alleged
sale transaction is sham and nominal and though his father is ready to give
back the money, the fifth respondent did not respond to that. If it is so, it
is for the parties to work out their remedies before the appropriate civil
forum.
10. Be that as it may, admittedly, there is no lawyer and client
relationship between the petitioner and the fifth respondent and when
there is no jural and fiduciary relationship, we wonder how the BCTNP is
right entertaining the complaint of the fifth respondent. In this regard, the
impugned resolution reads as follows :
"After due deliberation and on perusal of the complaint as well
as the reply statement filed by the respondent by both the parties,
the council is of the considered opinion that the complainant has
made out prima facie case in the complaint. Hence, the complaint is
referred to the Disciplinary Committee for enquiry and disposal."
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11. As indicated earlier, in the given facts and circumstances of the
case, the parties have to go before the civil forum to redress their
remedies. But that has not been done in this case. The tenancy or the
criminal disputes cannot be agitated before the Disciplinary Committee of
the BCTNP. A perusal of the complaint of the fifth respondent clearly
demonstrates that there is no professional misconduct. Curiously, the term
"misconduct" has not been defined anywhere in the Act. A Full Bench of
this Court in U.Dakshinamoorthy v. The Commission of Inquiry, 1980
(I) MLJ 121, has held as follows:-
"As misconduct has not been defined, we have to be guided by
the meaning which is obtainable for the expression in ordinary and
common parlance. 'Misconduct', as explained in the dictionary, is
improper conduct. The propriety of the conduct of the Advocate is to
be inquired into by the Commission. Whether it is professional
misconduct or misconduct otherwise has to be judged by the Bar
Council which has to be satisfied about the commission of such
misconduct, as technically understood under the Advocates Act.
Every misconduct may not be professional misconduct or other
misconduct contemplated by Section 35."
12. In Ratnam v. Kanikaram A.I.R. 1965 S.C. 244, the Hon'ble
Supreme Court has held as follows :-
"From the resume of the understanding of the term
"professional or other misconduct", as it appeared in the Bar Councils
Act, or, as it is found in the Advocates Act, it appears that the term
'misconduct' appearing in the respective sections has to be
examined, with the lens of propriety, decency and worthy living and
the fitness of the person to be on the rolls as an Advocate. It
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WP No.25522 of 2021
therefore appears that an accent is laid at every stage by the highest
Court of our land on the fitness of the person to continue on the rolls,
which has to be decided with reference to his conduct in general or
with reference to his conduct touching upon a particular incident."
13. From the reading of the above judgments, it is clear that the
misconduct has to be determined with reference to the conduct touching
upon a particular incident.
14. It is relevant to note that a Co-ordinate Bench of this Court in
P.Krishnan V. The Bar Council of Tamil Nadu and Puducherry, Rep.
by its Registrar and another, (W.P.No.10926 of 2021, dated
19.08.2021), issued the following guidelines :
"20. In the I.A. filed by the Second Respondent, without even
numbering, without notice to the party to the disciplinary proceedings
viz., the Petitioner, without disclosing any reason for transfer, the
Chairman has passed the said order violating all the principles of law.
Therefore, the transfer order is set aside and for the reasons stated
above, this Court holds that,
(1) State Bar Council, as mentioned in Section 35 of the
Advocate Act, would mean only the elected body.
(2) The definition of State Bar Council, as defined in Section 2(m)
and as employed in Section 35 of the Advocate Act, would refer the
elected members and the Advocate General, as stated in Section 3(2)
(b) of the Advocate Act.
(3) At the risk of repetition, it is made clear that State Bar
Council means the elected members of the entire Bar Council and the
Advocate General and not any individual.
(4) The exercise of powers under the Advocates Act could be
carried out only by the Bar Council viz., the collective body of elected
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members.
(5) If the chairman has got any power, it is only an
administrative control as per the Resolution dated 17.02.1985, as
approved by the Bar Council of India.
.......
22.(a) The transfer order dated 10.03.2021 is set aside as non
speaking order, which has been passed without notice to the Petitioner,
violating the principles of natural justice.
(b) The State Bar Council shall take a decision collectively after
discussion as to whether comments have to be obtained from an
individual Advocate based on the complaint received against the
individual Advocate and thereafter, follow the procedure as per law, as
to the commencement of disciplinary proceedings against an individual
Advocate and it should only be done by the General Council.
(c) The Resolution dated 06.03.1994 not in accordance with the
Advocates Act and is quashed.
(d) I.A. filed by the Second Respondent making allegations
against the Disciplinary Committee VI shall be numbered and after
issuing notice to the Petitioner, the General Council shall decide about
the transfer.
(e) The power of transfer from one Committee to another
Committee shall lie only with the General Council alone and not with
any individual and the said procedure should be followed scrupulously,
as violation of the same would amount to contempt of Court, for which,
the aggrieved party could initiate contempt proceedings before the
Court."
15. If the case on hand is considered with the touchstone of the
above principles, we are of the view that the resolution passed by BCTNP is
unsustainable in the eye of law and it deserves to be dismissed. Besides,
the above judgment was rendered on 19.08.2021 and the impugned
resolution is prior to that, i.e., dated 30.07.2021.
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WP No.25522 of 2021
16. Accordingly, this writ petition is allowed and the impugned
resolution and the consequential action of the BCTNP is quashed. Needless
to say it is open to the fifth respondent to workout his remedy in
accordance with law. No costs. Consequently, connected miscellaneous
petition is closed.
(P.S.N., J.) (S.K., J.)
23.02.2022
Index : Yes/No
Internet : Yes
Speaking Order: Yes/No
gg
To
1. The Chairman,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
2. The Secretary,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
3. The Registrar,
Disciplinary Committee,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
4. The Disciplinary Committee No.VII,
The Bar Council of Tamil Nadu & Puducherry,
Bar Council Building,
High Court Campus,
Chennai.
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WP No.25522 of 2021
PUSHPA SATHYANARAYANA, J.
and
S. KANNAMMAL
gg
W.P.No.25522 of 2021
23.02.2022
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