Stuti Hasmukh Oswal
Introduction
Disciplinary committee means a person or a group of people who are empowered to hear cases and proceedings involving professional misconduct of an advocate upon a complaint, revision or suo motu. The disciplinary committee is mainly formed to ensure that the members of the bar council of India or the bar council of any state are maintaining professional ethics and standards.
Constitution of the Disciplinary Committee
The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates Act, 1961. This section provides that the one or more disciplinary committee are required to be formed and each of these disciplinary committee shall consist of three members. The election of two from the three members of the disciplinary committee shall be done by the Council from the members of the Bar Council of India itself. The third member shall be co-elected by the Council outside of the members of the Bar Council but who shall be an advocate and possess qualifications as prescribed in Section 3(2) of the Advocates Act, 1961. The section further states that the senior most advocate shall be the chairman of the committee. The term of members of this committee shall be not more than 3 years.
Powers of Disciplinary Committee
The section 42 of the Advocate’s Act, 1961 provides powers of disciplinary committee. The section states that the disciplinary committee shall have the same powers as vested in a civil court as per the Code of Civil Procedure, 1908 which are as follows:
- Summoning and enforcing the attendance of any person and examining him on oath.
- Requiring discovery and production of any documents.
- Receiving evidence on affidavits.
- Requisitioning any public record or copies thereof from any court or office.
- Issuing commission for the examination of witness or documents.
- Any other matter which may be prescribed.
Restricted Powers of the Disciplinary Committee
The disciplinary committee can exercise these powers only with a prior approval of certain authorities. These are as follows:
- Attendance of any presiding officer of a court shall be allowed only with a prior approval of the High Court to which such court is subordinate.
- Attendance of any officer of revenue court shall be allowed only with prior approval of the State Government.
Miscellaneous Powers
- The proceedings before the disciplinary committee shall be deemed to be judicial proceedings.
- The disciplinary committee shall be deemed to be a civil court.
- If a chairman or any member of the disciplinary committee is unavailable on the date fixed for hearing the matter then the disciplinary committee may if it thinks fit proceed with the hearing and pass necessary orders provided that the order passed shall not be the final order. The proceedings and the order passed by such a committee shall not be invalid merely because the chairman or all three members of the disciplinary committee were not present.
- Where the final orders cannot be made because of want of majority among the disciplinary committee or is not in accordance with the opinion of the Chairman or the members of the disciplinary committee then such matter or case shall be placed before the Chairman of the Bar Council. If the Chairman of the Bar Council is acting as the chairman of the disciplinary committee, then the case shall be placed before the Vice Chairman of the Bar Council. After hearing the case, the Vice Chairman shall deliver his opinion and the disciplinary committee shall follow such final order.
- The disciplinary committee also has the power to impose costs of proceedings as it may deem fit and such order shall be executable as if it were the orders of High Court or Supreme Court.
- The disciplinary committee also has the power to review its own orders under section 44 of the Advocates Act, 1961.
Case Laws:
Allahabad Bank Vs. Girish Prasad Verma[1]
Facts: A complaint was lodged by the Allahabad Bank against its advocate Girish Verma stating that the advocate was given 52 suits for filing and accordingly paid him the requisite court fee that was required for the same. The Advocate Girish Verma filed 50 out of 52 suits and misappropriated the court fees paid to him for the remaining 2 suits.
Held: The disciplinary committee of the Uttar Pradesh Bar Council held that the advocate had misappropriated the court fee paid to him by the complainant and hence ordered for striking off the advocates name from the roll of Uttar Pradesh Bar Council. It further held that “The legal profession is a noble profession and its members must set an example of conduct worthy of emulation.”
V. C. Rangadurai Vs. D. Gopalan[2]
Facts: The advocate Mr. V.C. Rangadurai did not disclose conflicting interest to his client and kept him in dark. By doing this the advocate deceived his client who had placed his trust with him. The disciplinary committee found the advocate guilty and suspended him for a period of six years. The same order was challenged in the Supreme Court.
Held: The Supreme Court of India upheld the order passed by the disciplinary committee as there was no doubt regarding the advocates misconducts but reduced the punishment from six years to one year.
Rajendra Pai Vs. Alex Fernandes[3]
Facts: In a land acquisition matter the advocate along with 150 villagers filed a complaint. The advocate too was an interested party in the class action suit. The matter was settled and a compensation was given to the complainants. The advocate identified some claimants in opening a bank account wherein the amount of compensation was drawn. The said amount was withdrawn upon false identification. The disciplinary committee held that advocates name from the State roll and Bar Council of India shall be removed permanently.
Held: The order was then challenged in the Supreme Court wherein the disciplinary committee’s order was slightly modified. The Supreme Court was of the opinion that the punishment given was quite disproportionate to the facts and circumstances. It further stated that “Debarring a person from pursuing his career for his life is an extreme punishment and calls for caution and circumspection before being passed”. It reduced the punishment and directed that the advocate shall be suspended for a period of seven years.
Joginder Singh vs Bar Council Of India[4]
Facts: In the present matter the advocate was convicted under section 473 of IPC. There were various other criminal proceedings pending and that the advocate Mr. Joginder Singh was out on bail. All these facts were concealed by him while entering his name in the state bar roll. When the advocate filed an application to the Bar Council of India to transfer his name from U.P. Bar Council to Bar Council of Delhi the Bar Council of India learnt about such concealment and issued a notice for striking of the advocate’s name. The disciplinary committee passed an order of barring the advocate from practicing in any court and removed his name from the roll.
Held: The advocate being aggrieved by the order of the bar council appealed in the Delhi High Court. The Delhi High Court was of the opinion that there was no interference required in the said matter as the order passed by the bar council was in accordance with the evidence, facts and circumstances. Thus, the appeal was rejected and the order of the disciplinary committee was upheld.
John D’Souza vs Edward Ani 1994 AIR 975[5]
Facts: Mrs. Mary Raymond was a client of the appellant and had got her will drafted by him. She further kept the will in the appellant’s custody itself for execution. Mrs. Mary Raymond had appointed her husband as the executor of the will but unfortunately her husband passed away in the year 1974. Hence, she wished to make changes in the previous will and register a new one. Upon demanding the same, the appellant did not return the same. Mrs. Mary Raymond sent two letters claiming her previous will back but both her letters were ignored. Therefore, she was compelled to make an another will with Mr. George DaCosta. Even Mr. George DaCosta asked the appellant to return his client’s previous will that was in his custody to which the appellant blatantly denied and said that he does not have any will with him. Later, after Mrs. Mary Raymond’s death her son-in-law filed a complaint in the State bar council against the advocate i.e. the appellant. The said complaint was dismissed. An order or revision was obtained by the complainant and the matter was again placed before the state bar council who again dismissed the complaint stating there was no misconduct committed by the advocate. Aggrieved by such an order the complainant filed an appeal before the Bar Council of India who set aside the State Bar Council’s order and suspended the Advocate for a period of one year.
Held: On being aggrieved by such an order the advocate Mr. John D’Souza filed an appeal before the Supreme Court of India. After hearing the matter in detail, the Supreme Court was of the opinion that there was no evidence to prove that the will was returned upon the demands made and that the advocate had no right to withhold the will instead it was his duty to return the same when asked as the will was placed in his hands with the trust of his client. Hence, the order of the disciplinary committee of the Bar Council Of India was upheld.
Conclusion
The advocates play a significant role in the Judicial system. One relies on them completely by setting their complete trust. It is important for an advocate to discharge it’s responsibilities in a precise and efficient manner. Being in the legal profession and a officer of the court, an advocate is required to maintain high standards and uphold the dignity of the judicial office. Any misconduct of an advocate shall not be tolerable as this shall affect the trust and attitude of the people towards the judicial environment. In order to ensure that such irresponsible and irrational behaviour does not go unpunished a disciplinary committee has been set up and given powers to conduct such matters involving fraud, misconduct and cheating committed by an advocate towards his own client.
Reference
- The Advocate’s Act, 1961
- www.indiankanoon.com
- www.blog.ipleaders.in
- www.indianbarassociation.org
- Allahabad Bank V. Girish Prasad Verma BCI Tr. Case No. 49/1993 ↑
- V. C. Rangadurai Vs. D. Gopalan 1979 SCR (1) 1054 ↑
- Rajendra Pai vs. Alex Fernandes AIR 2002 SC 1808 ↑
- Joginder Singh Vs. Bar Council of India AIR 1975 Delhi 192 ↑
- John D’Souza vs Edward Ani 1994 AIR 975 ↑