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Dharam Nath Vs. District Judge - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All642
AppellantDharam Nath
RespondentDistrict Judge
Excerpt:
- - it should be clearly understood that we are expressing no opinion whatsoever on the merits of the matter and that it is for the district judge to decide, after the enquiry is over, whether an interim order should be passed or not in this case at the proper stage......was asked to show cause.2. on 5th april 1948, the learned district judge suspended the applicant pending investigation into these charges. he says in his order that, after a close study of the matter, he was convinced that he had the authority to pass an interim order of suspension. in the present application, the applicant contends that the district judge had no such authority and that his order is illegal.3. the question depends on the interpretation of two sections of the legal practitioners act, namely, section 14 and section 40. section 13 of the act provides that the high court may, after such enquiry as it thinks fit, suspend or dismiss any pleader or mukhtar for various reasons. under section 14, power is given to subordinate courts including the court of a district judge to.....
Judgment:

Wanchoo, J.

1. This is an application by Babu Dharam Nath, a pleader of Basti, who has been suspended by the District Judge of Basti pending the investigation into certain charges of professional misconduct which have been framed against him under Section 14, Legal Practitioners Act (No. XVIII [18] of 1879). These charges were framed on 31st March 1948 and the applicant was told that the acts mentioned in the charges, constitute fraudulent and grossly improper conduct in the discharge of his professional duty and was asked to show cause.

2. On 5th April 1948, the learned District Judge suspended the applicant pending investigation into these charges. He says in his order that, after a close study of the matter, he was convinced that he had the authority to pass an interim order of suspension. In the present application, the applicant contends that the District Judge had no such authority and that his order is illegal.

3. The question depends on the interpretation of two sections of the Legal Practitioners Act, namely, Section 14 and Section 40. Section 13 of the Act provides that the High Court may, after such enquiry as it thinks fit, suspend or dismiss any pleader or Mukhtar for various reasons. Under Section 14, power is given to Subordinate Courts including the Court of a District Judge to make an enquiry into the professional misconduct of a pleader or Mukhtar. The District Judge has to frame a charge against a pleader and give him a notice that on such and such day, the charge would be taken into consideration. This notice along with a copy of the charge has to be served upon the pleader at least fifteen days before the day appointed for the enquiry or any subsequent day to which the enquiry may be adjourn ed. The District Judge is bound to receive and record all evidence properly produced in support of the charge or by the pleader or Mukhtar and then to proceed to adjudicate on the charge. If the District Judge finds the charge established and considers that the pleader or Mukhtar should be suspended or dismissed in consequence, he has to record a finding to that effect giving the grounds in support of it and make a report to the High Court and the High Court may then acquit, suspend or dismiss the pleader or Mukhtar. Then follows para. 5 of Section 14 which requires interpretation in this case and reads as follows:

Any District Judge, or with his sanction any Judge Subordinate to him (any Judge of a Court of Small Causes of a Presidency town), any District Magistrate, or with his sanction any Magistrate Subordinate to him, and any Revenue-authority not inferior to a Collector, or with the Collector's sanction any Revenue Officer subordinate to him, may, pending the investigation and the orders of the High Court, suspend 'from practice any Pleader or Mukhtar charged before him or it under this section.

The words which particularly require consideration are:

Any District Judge, may pending the investigation and the orders oil the High Court suspend from practice any Pleader or Mukhtar charged before him.

Then we may set out Section 40 which is as follows:

Notwithstanding anything hereinbefore contained, no Pleader, Mukhtar or Revenue-Agent shall be suspended or dismissed under this Act unless he has been allowed an opportunity of defending himself before the Authority suspending or dismissing him.

4. It has been urged, on behalf of the applicant that in view of the provisions which we have quoted above, it is not open to a District Judge or a subordinate Court holding an enquiry into the conduct of a pleader to suspend him until he has completed that enquiry and makes a report to the High Court recommending suspension or dismissal and that this power of suspension by the District Judge or the subordinate Court can only be exercised after such a report has been made and when the matter is pending for the final orders of the High Court.

5. On the other hand, it has been contended, on behalf of the Crown, that because of the word 'investigation' in para. 5 of Section 14, it is within the power of the District Judge or the subordinate authority to suspend a pleader during the pendency of the enquiry before such District Judge or subordinate authority and before even a report is made to the High Court.

6. We are of opinion that, on a reading of paragraph five of Section 14 and of Section 40, the contention which has been put forward on behalf of the applicant is correct. It is obvious that two things are required before a District Judge or a subordinate authority can suspend a pleader. Firstly there should be an investigation pending at the time when the order of suspension is passed. Secondly the orders of the High Court should also be pending at the time when the order of suspension is passed. There is no definition of the word 'investigation' in this Act. It also appears that with respect to the proceedings before the District Judge or the subordinate authority the word used in Section 14, is 'enquiry'. Therefore, the word 'investigation' which is used in the latter part of Section 14, must have a slightly different meaning from the word 'enquiry' which has been used with reference to the proceeding before the District Judge before he makes a report to the High Court. It seems to us that the word 'investigation' has a wider meaning. It includes not only the period of the enquiry before the District Judge, but also the period when the matter is pending in the High Court after the report of the District Judge. There must always be an interval between the report of the District Judge and the final orders of High Court and, in some cases, this interval may extend even to some months. Therefore, it seems to us that the word 'investigation' has been used not only to include the period during which the enquiry is conducted by the District Judge, but also the further period when the matter is pending before the High Court. Even when the matter is pending before the High Court for its final orders, the case against a pleader must be still under investigation. Further, the investigation must be held to start when notice has been given to the pleader as required by Section 14 and the District Judge or the subordinate authority thereafter proceeds on the day appointed for enquiry into the matter. The first condition, therefore, namely, that an investigation should be pending before an interim order of suspension can be passed is present in this case because notice has been given to the pleader and he has been asked to show cause why action, under Section 14, should not be taken against him.

7. The second condition before an order of suspension can be passed is that the matter should be pending the orders of the High Court. It is obvious that if, after an enquiry, the District Judge comes to the conclusion that the charge is not established, it is open to him to drop the matter and make no report to the High Court. Therefore till the time that the District Judge comes to the conclusion that the charge has been established and considers that the pleader or Mukhtar should be suspended or dismissed, there will be no question of making a report to the High Court and no question of any matter pending for the orders of the High Court. It seems to us, therefore, that a District Judge hi-fi only power to suspend a pleader after he has recorded a finding against the pleader and is submitting a report to the High Court for its orders. It is at that stage that it can be said that the matter is pending the orders of the High Court. In this case, it is obvious that that stage has not yet arrived. It will arrive after the District Judge has heard the pleader in defence and taken such evidence as the parties produce before him. It is, in this connection, that Section 40 of the Act helps in the interpretation of paragraph five of Section 14. It is provided in Section 40 that:

Notwithstanding anything hereinbefore contained, no pleader...shall be suspended or dismissed under this Act unless he has been allowed an opportunity of defending himself before the authority suspending or dismissing him.

Before, therefore, even an interim order of suspension can be passed by the District Judge under paragraph five of Section 14, the pleader has to be allowed an opportunity of defending himself, This has not been done yet in this case. The pleader's defence will naturally include his giving such evidence as he wants to produce in support of his case. We are of opinion, therefore, that the power of interim suspension vested in the District Judge can only be used when he records his finding and is submitting a report to the High Court.

8. We may, in this connection, mention certain cases which support the view that we have taken.

9. The first of these cases is In matter of the petition of Kristo Lall Nag, 10 Cal. 256. It wa8 held there that:

The power of interim suspension given under Section 14 (Clause 5) of Act XVIII [18] of 1879, when read with Section 40 of the same Act, can only be exercised after the pleader has been heard in his defence and pending the investigation and orders of the High Court.

10. The next is the case of In Re: Bajrungi Sahai, a Mookhtear 13 C.L.J. 457. It was held in this case that:

A legal practitioner can only be suspended under para. 5 of Section 14 after he has been heard in defence under Section 40 and pending the investigation and orders of the High Court. The investigation referred to in Section 40 is an investigation by the High Court.

11. Then comes the case of U San Them v. District Magistrate, Magwe A.I.R. (23) 1936 Bang. 249 in which it was held that:

Section 14 is governed by Section 40. Under Section 40 no pleader may be suspended from practice unless he has been allowed an opportunity of defending himself before the authority suspending him. And under Clause 5 of Section 14 a pleader can be suspended only after the preliminary inquiry in the Court in which the misconduct took place and pending the investigation before the High Court under Section 13.

12. The last case is that of In Re: L.A. First Grade Pleader, Rajam A.I.R. (24) 1937 Mad. 672 in which it was held than

The District Judge cannot under Section 14, Legal Practitioners Act, suspend any pleader from practice until he has recorded his finding that he ought to be suspended or dismissed.

13. We are in complete agreement, if we may say so with respect, with the view expressed in these cases. We may also point out that the power of interim suspension given under para. 5 of Section 14 comes after paragraph 4 which mentions that a report should be made to the High Court after the District Judge considers that the charge has been established. If the intention of the Legislature was that a pleader or Mukhtar should be suspended even during the enquiry before the District Judge or the subordinate authority, this provision would have found place in the earlier part of Section 14 and the more proper words in that case would have been 'pending the enquiry before the presiding officer concerned' or words to some such effect. We are, therefore, of opinion that under para. 5 of Section 14 the District Judge or the subordinate authority can only suspend a pleader or Mukhtar at the time when it records a finding that the charge has been established and is submitting a report to the High Court. In this view of the matter, the order of the Court below is beyond its jurisdiction and must be set aside.

14. It was urged by the learned Additional Government Advocate that this application does not lie to this Court at all under any provision of the law. We are of opinion that whether we treat these proceedings as civil or as criminal proceedings, the application would lie to this Court either on the civil side as a civil revision or on the criminal side as a criminal revision. We see no force in this objection.

15. We, therefore, allow the application and set aside the order of the District Judge, Basti, dated 5th April 1948 by which he has suspended the applicant, Babu Dharam Nath pending the enquiry before him. It should be clearly understood that we are expressing no opinion whatsoever on the merits of the matter and that it is for the District Judge to decide, after the enquiry is over, whether an interim order should be passed or not in this case at the proper stage.


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