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Mangu Srihari Vs. Bar Council of State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit appeal No. 625 of 1982
Reported inAIR1983AP271
ActsAdvocates Act, 1961 - Sections 35 and 36B
AppellantMangu Srihari
RespondentBar Council of State of Andhra Pradesh and anr.
Appellant AdvocateM. Lakshmana Rao, Adv.
Respondent AdvocateA. Pulla Reddy, Adv. General
.....against dismissal of writ petition seeking writ of mandamus against bar council of state to stay enquiry - question for consideration before bar council was whether advocate was responsible for fabrication of record in question - advocate contended that same issue was pending before civil court - so proceedings initiated by bar council to be stayed - court observed that matter before bar council was disciplinary proceeding - no parallel enquiry in issues identical to those arising in suit pending before civil court - committee was enjoined by advocate act - cannot be said that committee had exercised its discretion arbitrarily in refusing to stay its proceedings - held, no reason to interfere with order of single judge dismissing petition. - - he also urges that the bound to interfere with the even and ordinary course of justice and that the enquiry must be stayed pending trial or otherwise it would amount to contempt for the amtters involved in both were more or less the same. in reaching this conclusion the learned judges relied mainly upon the decision of the full bench of the patna high court in the king v. parmanand. air 1949 pat 222. it may be noticed that the observations made by the full bench in king v. parmanad air 1949 pat 222 were not viewed with favour by the supreme court in jang bahadur singh v. baij nath : 1969crilj267 to which we would refer in due course. suffice to state that the court therein was considering whether parallel proceedings by the commission of enquiry would constitute contempt of court when identical matter.....

K. Madhava Reddy, Actg. C.J.

1. This appeal by an advocate on the rolls of the Bar council of Andhra pradesh is directed against the dismissal of his writ petition seeking a writ of Mandamus against the Bar council of the state of Andhra pradesh Hyderabad to stay the enquiry in c. C. No. 10 of 1981 on its file pending disposal of O.S. 12/81 and E.A. 16/79 in E.P. 7/79 on the file of the District Munsif at Jangaon. That writ petition came to be filed in the following circumstances.

2. Thakur Anantha Ram Singh 2nd respondent herein (hereinafter referred to as the complaint or 2nd respondent) was the Municipal Toll tax contractor of jangoan Municipality for the year 1960. The Municipality filed a suit O.s. 13/67 against him for recovery of sum of Rs. 4.267-50 ps. The appellant (petitioner) (hereinafter refered to as the advocate) was engaged as an advocate to defend him in this suit. That suit was decreed on 24-8-1967. For execution of that decree Jangaon Municipality filed E.P. No. 25/67 and attached a vacant site and house belonging to the 2nd respondent (judgment-debtor) a Claim petition E.A. 41/67 was filed by the minor son of the 2nd respondent through his concubine. That petition was allowed on 22-6-1968. The advocate's wife purpoted to purchase the house from the minor son on 26-12-1968 under an agreement of sale coupled with delivery of possession. The Municipality filed a regular suit O.s. 22/69 on 18-12-1969 to set aside the claim order impleading the 2nd respondent his minor son the advocate and his wife on orders of the Court the advocate's name was deleted from the array of defendants. The claim suit was decreed on 6-10-1969 On 17-8-1980 the advocate obtained a retification deed from the 2nd respondent the Municipality once again attached the housein E.P. 7/79. The advocate's wife file E.A. 16/79 inter alia contending that only the site was mortgaged to the Municipality and not the house and hence if at all. Only the site could be attached and not the house. On 22-12-1980 the 2nd respondent filed a suit O.S. 12/81 on the file of the District Munisif Jangaon for declaration of title and that neither the advocate nor his wife was the owner thereof and all the documents set up by them were fabricated by the advocate. On the same set of facts he submitted a complaint to the Bar council of the state of Andhra pradesh alleging misconduct on the part of the advocate. That complaint was registered as C. C. 10/81 and notice issued to the advocate. On receipt of the notice the advocate on receipt of the notice the advocate on receipt of the notice the advocate filed a defence statement and an application I.A. 1/82 to follow the procedure laid down for the trial of civil suits by framing issues for determination and requiring the complainant to file a list of witnesses as provided in r. 1 of O. 16 C.P.C. and then to record oral evidence. The advocate also filed I.A. 2/82 to drop the compliant case No. 10/81 or in the alternative to stay the same pending disposal of O.S. 12/81 and E.P. 7/79 pleading that he would be grave prejudiced and he would put to great and irreparable loss and injury the Bar council of Andhra Pradesh after hearing the complainant and the advocate held that the enquiry need not be stayed and accordingly claimed I.A. 2/82. It is that order is challenged and a writ of mandamus is prayed for. Our learned brother chennakesav Reddi. J. Dismissed the writ petition in limine.

3. The advocate while not disputing the jurisdiction of the Bar council to entertain the complaint and enquire into it, questions the propriety of proceeding with the enquiry when the same issues are pending adjudication before a civil Court. He also apprehends that the enquiry by the disciplinary committee of the bar council consisting of three senior advocates may prejudice the Court and any finding given by the committee may influence the decision of the Court. He also urges that the Bar council being obsessed with the time limit of one year for disposal of the matter before it failed to consider whether it was fit case to be stayed.

4. From the above narration of facts, it is clear that what is in issue before the civil Court is whether the 2nd respondent (complainant) is the owner of the suit property and whether the documents set up by the advocate's wife are fabricated. Two of the issues (issues 3 and 4) settled for trial by the District munisif in the said suit as extracted in the advocate's affidavit are:

'3. Whether the plaintiffs have ratified the agreement dated 26-12-1968 alleged to have been executed by laxmi bai by executing an agreement dated 17-2-1970 for a consideration of Rs. 10,000/- in favour of defendant No. 2?

On the other hand the issue that would fall for consideration before the Bar council would be whether the documents in question are fabricated and if so. Whether the advocate was in any way responsible for such fabrication and whether his conduct otherwise constitutes professional misconduct as understood under the advocate Act and the Bar council of India Rules, 1975.

5. Though one of the issues viz., whether the Documents in question are fabricated? Is common the other issues that fall for enquiry and decision in the suit are different from those that are required to be considered and decided by the Bar council in the complaint case. The relief that may be granted in the suit is not the same as the action that may be taken by the Bar council on the basis of the Findings arrived at by the disciplinary committee in C. C. No. 10/81 in the suit 1983 Andh pra 18 VIII G-10 the declaration prayed for may be granted or refused In the disciplinary proceedings no relief will be granted to the complainant, only the advocate may be punished for professional misconduct or the proceedings dropped as not proved. The enquiry pending before the District Munsif's Court in O.S. No. 12/81 and the enquiry before the Bar council are thus not parallel enquires only one of the issues arising for decision for disposing of the respective cases before them is common Even if the documents are found to be fabricated. It does not necessarily follow that the advocate against whom disciplinary proceedings are pending in C. C. 10/81 was responsible for it or was guilty of professional misconduct. It is not as if the findings in the civil Court automatically conclude the proceedings in C. C. 10/81 the proceedings before the disciplinary committee of the Bar council are against an advocate with reference to the allegation of professional misconduct against him. The enquiry is by a professional body calculated to maintain professional body calculated to maintain professional discipline among the members of the Bar and is not intended to grant any relief to the complainant as such. Thus on the facts. It cannot be said that these proceedings are parallel proceedings the continuation of which is prohibited the law all or is otherwise absolutely necessary under allcircumstances.

6. Mr. Lakshmana Rao, learned counsel for the appellant rightly (did) not contend the at the Bar council had no jursidcition to proceed with the entry in C. C. 10/81 the Allegations in the complaint prima facie disclose misconduct on the part of the advocate and all for an enquiry by the Disciplinary committee. The learned counsel therfore confined himself to attacking the order refusing to stay the proceedings on the ground that this enquiry would prejudice him and it is but fair that he should not be compelled to disclose his defence in the disciplinary proceedings while the matter is pending adjudication in a civil Court. He therefore urged that the disciplinary authority. In all fairness, ought to have adjourned the proceedings.

7. In the context it must be noticed that the advocates Act and the rules framed by the Bar council of India are calculated to maintain high standard of professional conduct. Towards this end, it is provided that any allegation of professional misconduct should be enquired into by senior members body has reposed confidence electing them R. 36-B of the Rules made under Advocates Act envisages expeditious disposal of any such complaint by prescribing a period of one year for the disposal of the complaint and laying down that if the enquiry is not so disposed of it would stand transferred to the Bar council of India. Neither the Act nor the rules governing the disciplinary proceedings envisage stay of these proceedings having regard to the pendency of a criminal or civil case before any Court or other authority the complainant himself cannot withdraw the proceeding. Even the death of the complainant does not terminate the disciplinary proceedings before the Bar council. It is only a decision of the Disciplinary committee that terminates the proceedings Disposal of such a proceeding with ulmost expedition is in the interests of the advocate whose professional integrity is under a cloud as a result of the initiation and pendency of the disciplinary proceedings.

8. Mr. Lakshmana Rao, learned counsel for the appellant however contended that whenever a proceeding is pending before a civil Court even though the bar council may have jurisdiction to proceed with the enquiry it is neither expedient nor fair to proceed with the enquiry. In this behalf he relied upon a decision of the jammu and kashmir High Court in harbans singh v. Transport commissioner, AIR 1966 J & K 73. The learned single Judge Murtaza Fazl Ali, J. (As he then was) considered the question whether a prayer made to the Transport commissioner for staying the departmental enquiry is reasonable having regard to the pendency of the criminal case and observed that the prayer was not unreasonable. It would be pertinent to note that in this decision it was not laid down as a matter of law that it would be unreasonable not to stay under all circumstances. The learned Judge considered the several infirmities attached to the departmental enquiry like not supplying material on which charges were framed not giving him sufficient opportunity to participate in the enquiry proceeding with the enquiry behind his back without notice to him and observed that in those circumstances it was not an unreasonable request to stay the departmental enquiry pending the proceedings in a criminal case.

9. The learned counsel also placed reliance on a judgment of the punjab High Court in hoshair singh v. State . That was a case in which a commission of enquiry constituted under the commissions of Enquiry constituted under the commissions of Enquiry Act proceeded to make a public enquiry in regard to an incident which formed the subject-matter of the criminal case Upon the request of the accused to stay the proceedings before the commissionof Enquiry being refused. The question arose whether the commission of enquiry was guilty of contempt of Court and whether the enquiry should be stayed. The Court was of the view that such an enquiry ws bound to interfere with the even and ordinary course of justice and that the enquiry must be stayed pending trial or otherwise it would amount to contempt for the amtters involved in both were more or less the same. In reaching this conclusion the learned Judges relied mainly upon the decision of the Full Bench of the patna High Court in the King v. Parmanand. AIR 1949 pat 222. It may be noticed that the observations made by the Full Bench in King v. Parmanad AIR 1949 pat 222 were not viewed with favour by the Supreme Court in Jang Bahadur singh v. Baij nath : 1969CriLJ267 to which we would refer in due course. Suffice to state that the Court therein was considering whether parallel proceedings by the commission of Enquiry would constitute contempt of Court when identical matter was pending trial before a criminal Court. That was a case in which the accused, who was facing a criminal trial had asked for stay of a public enquiry by the commission of Inquiry which was likely to prejudice his defence ther is no exhaustive discussion of the aspects with which we are now concerned with reference to a disciplinary proceeding being taken by a professional body such as the Bar council of India against a member of that profession. One point that seems to have largely weighed with that Court in that case was that the matters for consideration before the commission of Enquiry and the criminal Court were identical which is not the case in the matter now before us.

10. Mr. Lakshmana Rao, learned counsel for the appellant also relied upon the decision of the Supreme Court in Delhi Cloth and General Mills v. Kushal bhan : (1960)ILLJ520SC where their Lordships of hte Supreme Court were called upon the consider whether a domestic enquiry by a master against his servant should be stayed pending trial of a criminal Court. The Court observation (Para 3):-

'Though very employers stay enquiries into the misconduct of th employees pending the decision of the criminal trial courts dealing with the same facts and that is fair, it cannot be said that principles of natural justice require that an employer must wait for the decision at least of the criminal trial Court befre taking action against an Employee'.

This decision far from supporting the appellant's case given a clear indication that there may be cases where staying the domestic enquiry may be neither necesssary nor expedient and failure to stay such an enquiry cannot be termed as 'unfair'. All that their Lordships observed was that if the case is of a grave nature or involves questions of fact or law which are not simple it would be advisable for the employer to await the decision of the trial Court so that the defence of the employee in hte criminal case may not be prejudiced'.

11. Tata Oil Mills v. Workmen, : (1964)IILLJ113SC which was also relied upon by the learned counsel is yet another case of a domestic enquiry into the misconduct of a workman resulting in his dismissal while a criminal case in respect of that very incident was pending. The Court observed (para 9):-

'It is dexirable that if the incident giving rise to the charge framed against a workman in a domestic enquiry is being tried in a criminal Court. The employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge character because in such a case, it would be untair to compel the workman to disclose the defence which he may take before the criminal Court:.

It would be pertinent to note that their lordships hastened to add:-

'But to say that domestic enquiries may be stayed pending criminal trial is very different from anything that if an employer proceeds with the domestic enquiry in spite of the fact that criminal trial is pending the enquiry for that reason alone is such an enquiry is either bad in law or mala fide'.

In fact their lordships proceeded to hold that the 'Tribunal was in error when it characterised the result of the domestice enquiry as mala fide partly because the enquiry was not stayed pending the criminal proceeding against Raghavan (workman).' In coming to that conclusion the Court was more weighted by the fact that the accused facing a criminal trial in a case of grave nature would have to disclose his degence and the matter involved enquiry into questions of fact or law which are not simple . Further those observations wer made in the context of a domestic enquiry by a master against his servant. That cannot be taken as a principle of uniform application and certainly not intended to apply even to an enquiry by a professional body which has the necessary expertise to enquire into all questions of fact and alw however grave an to an enquiry into all questions of fact and law however grave the nture of the imputitions may be and to an enquiry the purpose of which is to maintain high professional standars. Any enquiry by such a body cannot be deeemed to prejudice the person concerned who is an advocate and who is not facing a criminal trial but is only required to defect a civil claim before a district munsif's Court.

12. In fact in T. G. Goskar v. R.N. Shukla : 1968CriLJ1234 a Constitution bench of the Supreme Court in the ocntext of the contention that any enquiry by the customs officer under the provisions of the sea customs Act while a criminal prosecution of the person in connection with smuggling of gold was imminent, constituted contempt of Court observed (para 3)'-

'The customs officers are empowered to consfiscate smuggled goods and to levy penalties on person concerned with the smuggling. They may initiate proceedings for confiscation of he goods and for imposition of the penalty though the trial of those persons in a criminal Court for connected offences is imminent. The initation and continuance of those proceedings in good faith cannot amount to contempt of the criminal Court.

xx xx xx xx The customs officers did nothing of this kind. They are acting bona fide and discharging their statutory duties under secs. 111 and 112. The power of adjudicating penalty and confiscation under those sections is vested in them alone. The criminal Court cannot make this adjudiciation the issue of show cause notice and proceedings thereunder are authorised by the Act and are not clculated to obstruct the course of Justice in any Court. We see no justification for holding that the proceedings amount to contempt of Court'.

The ocurt also considered whether the refusal to stay the proceedings under secs. 111 and 112 during the pendency of trial of the criminal case amounted to proper exercise of discretion or not and held that in the exercise of the discretion they have refused to stay the proceedings and that it is not shown that their action is mala fide or arbitrary and in that view held that the Court will not issue a mandamus to control the exercise of their discretion.

13. In Jang Bhahadur singh v. Baij Nath : 1969CriLJ267 (supra) their Lordships of the Supreme Court put the position broadly thus: 'An authority holding an inquiry in good faith in exercise of the powers vested in it by statutory regulations is not guilty of contempt of Court merely because a parallel inquiry is imminent or pending before a Court and indicated that such proceedings should not be stayed when taking in good faith. The Court proceeded to observe (para 7):-

'We cannot agree with the broad observation that a parallel inquiry on a matter pending before a Court necessarily amounts to a contempt of Court . we think that an inquiry by a domestic tribunal in good faith into the charges against an employee does not amount to contempt of Court merely because an inquiry into the same charges is pending before a civil or criminal Court'.

In deciding whether a proceeding before a disciplinary committee of a Bar council should be stayed or not we must take note of the nature of the allegations against the advocate and the fact that the enquiry is pending before the professional body. Such allegations of misconduct almost invariably give rise to either civil consequence or criminal liability and invariably they form the subject-matter of either civil or criminal proceedings before a Court or other authority. A professional body. Such as the Bar-council, has the exclusive jurisdiction to enquire into the allegations of misconduct against the members of the legal profession and it is enjoined to dispose of enquiry into such allegations expeditiously within a period of one year. That provision is intended not merely to clear the cloud cast on the particular advocate at the earliest but also intended to keep the noble profession itself clear of such members. Advocates owe a duty not only to their clients but to the Court as well in the administration of law and justice. It is in the interest of the Advocate and in particular that the proceedings conclude with the least possible delay Merely because some civil or criminal proceeding is pending before a Court or authority in respect of some issue common to that proceeding and the proceeding before the disciplinary committee of the Bar council and stay of proceedigs before the Bar council would result in serious interference with the discharge of the statutory functions of the professional body unless allowing such proceeding to go on would result in miscarriage of justice such a step should in our view be avoided.

14. In the instant case the matter before the bar council is a disciplinary proceeding and not a parallel enquiry into the issues identical to those arising in the suit pending before a civil Court. The enquiry is being held by a Disciplinary committee eminently qualified to decide all intracate issues of law and fact. The committee is enjoined by the advocates Act and the rules framed thereunder to dispose of the disciplinary matters within a period of one year from the date of their initiation. In such circumstances it cannot be said that th said committee has exercised its discretion arbitrarily in refusing to stay its proceedings as prayed for by the appellant. When that professional body itself having considered all the aspects has refused to exercise its discretion to stay the proceedings we do not think that this Court should exercise its extraordinary jurisdiction to issue a mandamus directing the professional body to exercise the discretion vested in it in a particular manner or issue a direction staying the proceedings before it. We therefore do not see any reason to interfere with the order made by the learned single judge dismissing the writ petition.

15. This writ appeal. Therefore fails and is accordingly dismissed but in the circumstances. We make no order as to costs.

16. Appeal dismissed.

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