Orissa High Court
Girija Prasanna Panda vs Orissa State Bar Council And Ors. on 19 June, 2001
Equivalent citations: 2001(II)OLR216
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT R.K. Patra, J.
1. The petitioner-an advocate-ordinarily practising at Jajpur Road has filed this writ petition challenging the validity of the notification No. 8167/99 dated 8.9.1999 (Annexure-1) of the Orissa State Bar Council by which he has been placed under suspension.
2. The case of the petitioner is that he passed the Final Law Examination (LL.B.) in 1982 under the Utkal University. After publication of the Final Law result, he was issued with provisional certificate dated 23 10.1982 (Annexure-2) by the Utkal University. The certificate reads as follows :
"This is to certify that Girija Prasanna Panda has passed the Final Law Examination held, in the month of May, 1982 from M.S.Law College, Cuttack in Second Class."
On the basis of the said provisional certificate, he applied to the Orissa State Bar Council to be admitted as an advocate on its roll. The State Bar Council on due consideration of all the documents enrolled the petitioner as an advocate on 12.12.1983 and assigned State Roll No. 34 of 1983 (Annexure-3). Since then he has been practising as an advocate at Jajpur Road. He was surprised to receive letter dated 28.2.1983 (Annexure-4) from the Secretary, Orissa State Bar Council wherein it was stated that the publication of result of Final Law Examination, 1982 relating to him was under investigation as intimated by the Controller of Examinations, Utkal University. The petitioner was asked to clarify the position at an early date. On receipt of the said letter. he submitted a reply (Annexure-5) to the effect that he was admitted as an advocate on the basis of the provisional certificate granted by the Utkal University and Conduct Certificate issued by the Principal, M.S. Law College. The said reply was received in the office of the State Bar Council on 14.3.1983 and there was no further query or inquiry in the matter. In the year 1986 he obtained the mark-sheet (Annexure-6) and the College Leaving Certificate (Annexure-7) from the Principal, M.S.Law College. After lapse of 16 years, the Orissa State Bar Council suddenly started to inquire and asked the petitioner on 8.1.1999 to submit the original certificate in support of his educational qualification. The petitioner accordingly produced the original certificates before the Chairman, Orissa State Bar Council on 2.2.1999. He also submitted copies of those certificates to him. The State Bar Council thereafter made inquiry from the Utkal University to ascertain the genuineness of the certificates submitted by the petitioner. The Secretary of the Orissa State Bar Council in his letter dated 9.3.1999 (Annexure- 8) asked the petitioner to produce the original LL.B. certificate received from the Utkal University. The petitioner submitted his reply dated 19.3.1999 (Annexure-9 series) that he has not yet received the original LL.B. certificate from the Utkal University despite the fact that he made an application for the purpose. He had enclosed the relevant correspondences made with the Utkal University to his reply. On 13.4.1999 the petitioner also sent a reminder (Annexure-10) to the Registrar, Utkal University for issue of original LL.B. certificate. While the matter stood thus, the Orissa State Bar Council without, any valid reason issued the impugned notification at Annexure-1. The petitioner submitted his representation dated 14.10.1999 (Annexure-1 1) to revoke the suspension order.
3. The Orissa State Bar Council which is opposite party No. 1 has filed its counter affidavit. Its case is that the impugned order of suspension has been made by way of interim measure subject to final decision to be taken by the Bar Council of India. Since his name has not been removed from the roll of advocates, he has not been prejudiced in any manner. Regarding the petitioner's qualification it has been asserted that although he was a student of LL.B. course in M.S. Law College, he has not passed Final Law Examination. Basing on a provisional certificate granted by the Utkal University, he was allowed to be enrolled as an advocate on 12.2.1983. The Controller of Examinations. Utkal University in his letter dated 15.2.1983 (Annexure-A/1) wrote to the State Bar Council that the petitioner's result in respect of Final Law Examination of June. 1982 required further investigation and accordingly it was requested not to allow him to register his name in the Bar Council until final intimation was given. On 28.2.1983 the Bar Council informed the petitioner that publication of result of his Final Law Examination was under investigation. The Utkal University, however, did not inform the result, of investigation to the State Bar Council. As a result, the .petitioner was allowed to continue as an advocate on the basis of the certificate granted to him, The Controller of Examinations, Utkal University in his letter dated 6.11.1998 (Annexure-B/ 1) informed the Secretary, Jajpur Road Bar Association that the petitioner appeared in the Final Examination in Law held in June. 1982 from M.S.Law College. but. declared "failed" in the examination. On being informed by the Secretary, Jajpur Road Bar Association, the State Bar Council in its letter dated 8.1.1999 (Annexure-C/1) required the petitioner to produce the original H.S.C. Certificate, provisional and original LL.B. certificates before the Chairman on 14.1.1999. The petitioner neither appeared on the date fixed nor produced the original certificates asked for. The State Bar Council in its letter dated 23.3.1999 (Annexure-D/ 1) wrote to the Vice-Chancellor of Utkal University requesting him to inform about the genuineness and correctness of the certificates. The Controller of Examinations. Utkal University in his letter dated 30.7.1999 (Annexure-G/ 1) informed the State Bar Council that original LL.B. certificate has not been issued to the petitioner as he has not qualified in the said examination and got failed and the matter is under investigation. The petitioner thus being not a Law Graduate could not. enrol himself as an advocate, and therefore, in the interest of the legal profession the impugned notification was made.
4. The Utkal University which is opposite party No. 2 has also filed its counter affidavit. Its case is that the petitioner passed his Pre-Law and Inter Law and has secured 304 and 300 marks respectively, but has failed in Final Law and secured 283 as the total aggregate mark in Final Law. In course of investigation it appeared that the petitioner could be able to manipulate the tabulation register in Examination Section 4 of the University on the basis of which it. was shown as if he passed in the LL.B. Examination. He could be able to manipulate the mark awarded in Paper-II and Paper-III of the Final Examination of LL.B. and 51 marks in each subject was enhanced to 61. As a result, the total mark of Final Law Examination was shown as 303 instead of 283. By this manipulation he was shown as passed in-LL.B. Examination on the basis of which the provisional certificate from the Utkal University was obtained by him.
5. Shri Jagannath Patnaik, learned Senior Counsel appearing for the State Bar Council (opposite party No. 1) raised a preliminary objection that an alternative remedy is available Under Section 48A of the Advocates Act, 1961 (hereinafter referred to as the Act') to the petitioner to move the Bar Council of India, and as such, this Court, in exercise of its discretionary jurisdiction should not: entertain the writ petition at this stage. This contention has to be stated to be rejected. Section 48A is a suo motu power of revision given to the Bar Council of India which provides that it may call for the records of any proceeding under the Act which has been disposed of by the State Bar Council or a Committee thereof and from which no appeal lies for the purpose of satisfying itself as to the legality or propriety of such disposal. It may be seen that suo motu power of revision can be invoked by the Bar Council of India in respect of a matter which has been disposed of by the State Bar Council or a Committee thereof. In the case at hand, the State Bar Council has not disposed of any matter. The impugned notification itself indicates that the suspension order has been made by way of interim measure until further communication. Since no matter has been disposed of. question of invoking the revisional jurisdiction of the Bar Council of India in the circumstances does not arise. Secondly, the law is well settled that the existence of an alternative remedy is not an absolute bar to the relief under Article 226. In exercising its discretionary power under Article 226 the Court has to take that circumstance (existence of an alternative remedy) into consideration. Where it is complained that the order has been made in violation of the rules of natural justice or where the order is a nullity, the writ Court would be justified in granting relief under Article 226. It is the contention of Shri Mohanty learned counsel for the petitioner that the State Bar Council has no power to suspend the petitioner's enrolment as an advocate besides it is violative of the principle of natural justice. As the contention goes to the root of the matter, we have no hesitation to over-rule the aforesaid preliminary objection.
6. Shri Mohanty contended that the State Bar Council has not been conferred with any power under the Act to suspend an advocate from its roll without referring the matter to the Disciplinary Committee. He also submitted that the Utkal University having neither cancelled the result of the petitioner nor withdrawn the certificate issued in his favour, the State Bar Council acted illegally in passing the impugned order.
7. Before considering the submission of the counsel for the parties, it would be appropriate to extract the impugned notification which reads as follows :
"It is hereby notified for General information that in pursuance of the order passed by the Council in its Meeting dated 29.8.1999. Sri Girija Prasanna Panda, Advocate. Jajpur Road, bearing enrolment No. 0-34-83, dated 12.02.1983 is put under suspension until further communication under the charges that Sri Panda had obtained enrolment as Advocate under Orissa State Bar Council on the basis of fraud and misrepresentation."
It may be seen that the aforesaid notification was issued pursuant to the decision of the Orissa State Bar Council taken in its meeting on 29.8.1999. A copy of the proceedings of the State Bar Council dated 29.8.1999 is at Annexure-J/1. The relevant portion is quoted hereunder :
"The Council had taken a serious view in the matter wherein Sri Girija Prasanna Panda has obtained his enrolment on the basis of fraud and mis-representation. The Council resolved to suspend him pending final disposal of the matter by Bar Council of India....."
8. The preamble of the Act declares that it is an Act to amend and consolidate the law relating to the legal practitioners and to provide for the constitution of Bar Council and an All- India Bar. Section 6(1) of the Act. enumerates different functions of the State Bar Councils. We may quote Clauses (a) and (c) of Sub-section (1) of Section 6 which are relevant for our purpose :
(a) to admit persons as advocates on its roll; and
(c) to entertain and determine cases of misconduct against advocates on its roll.
Section 9 deals with constitution of Disciplinary Committee. Section 10 provides for constitution of Committees other than Disciplinary Committee i.e. an Executive Committee and an Enrolment Committee. The Enrolment Committee disposes of the application for admission as an advocate as provided Under Section 26. The Enrolment Committee disposes of the application for admission as an advocate as provided Under Section 26. Section 22 of the Act relates to issue of certificate of enrolment to every person whose name is entered in the roll of advocates maintained by it under the Act. Section 35 of the Act deals with punishment of advocates for misconduct. It lays down that where on receipt of a complaint or otherwise a State Bar Council has reason to believe that an advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee which after following the procedure provided therein may; (a) dismiss the complaint; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit: and (d) remove the name of the advocate from the State roll of advocates. From the brief resume of different provisions of the Act made above, it is evident that, although Under Section 6(1) of the Act. function of the State Bar Council is to entertain and determine the cases of misconduct against advocates, on its roll, it has to refer such cases of misconduct to the Disciplinary Committee as envisaged Under Section 35. The Disciplinary Committee on enquiry may inflict any of the penalties prescribed under Sub-section (3) of Section 35. The State Bar Council has thus no power to impose any penalty. When the Act does not confer jurisdiction on the State Bar Council to inflict any punishment. a fortiori it cannot pass any interim order imposing penalty.
9. In the case at hand, it is an admitted case of parties that the Disciplinary Committee has not yet imposed any penalty on the petitioner. For the reasons aforesaid, therefore, the State Bar Council exceeded its jurisdiction in placing the petitioner under suspension "until further communication".
10. In the result, the impugned notification at Annexure-I cannot be supported in law which is hereby quashed. Writ petition is allowed.
P.K. Misra, J.
11. I agree.