Bombay High Court
Arvind Purushottam Wachasundar vs Bar Council Of India & 3 Ors on 1 February, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Swapna Joshi
Judgment wp4398.02
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4398 OF 2002.
Arvind s/o Purushottam Wachasunder,
Aged about 52 years, Occupation -
Advocate, resident of Flat No.F/2,
"Kanchan Vimals", 166, Shivaji Nagar,
Nagpur 440 010. ... PETITIONER.
VERSUS
1. Bar Council of India,
21, Rouse Avenue, Industrial Area
Near Bal Bhavan, New Delhi 110 002
through its Secretary.
2. The Disciplinary Committee of the
Bar Council of India, 21, Rouse Avenue,
Industrial Area, Near Bal Bhavan,
New Delhi 110 002
through its Registrar.
3. Bar Council of Maharashtra and Goa,
High Court Extension, II Floor, Fort,
Bombay 400 032,
through its Secretary.
4. Shri Ghanshyam s/o Narayandas Chandak,
Aged about 60 years, Occupation - not
known, resident of 44, Jeevan Chhaya,
Near Tarun Bharat, Ramdaspeth,
Nagpur 440 010. ... RESPONDENTS
.
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Judgment wp4398.02
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Shri D.V. Chauhan, Advocate for Petitioner.
None for Respondents.
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CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : FEBRUARY 01, 2018
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Shri Chauhan, learned counsel for the petitioner. None appears for respondents. Nobody has filed vakalatnama for respondent nos. 1, 2 or 4. It is to be noted that respondent no.4 is the complainant, who approached respondent no.3 alleging professional misconduct against the petitioner.
2. Misconduct urged is, accepting the engagement as Enquiry Officer in a Departmental Enquiry against respondent no.4 by his employer. Respondent no.4 in his complaint submitted to respondent no.3, has pointed out that the petitioner has appeared in a court case for his employer against other employees. According to ::: Uploaded on - 06/02/2018 ::: Downloaded on - 07/02/2018 01:19:05 ::: Judgment wp4398.02 3 respondent no.4, petitioner therefore, was biased in favour of the employer and could not have and should not have accepted to act as an enquiry officer.
3. The complaint submitted by respondent no.4 is dated 24.10.1990. Petitioner thereafter raised preliminary objection. He pointed out that in a revision filed in the Industrial Court, he assisted Advocate for management namely Advocate J.A. Anthony, and put forth arguments only on question of law. He has stated that he was not a counsel retained by the management and hence, had no bias in the matter. He also pointed out that a representation for discontinuation of enquiry officer made by respondent no.4, was rejected by the management by passing appropriate resolution. This preliminary objection raised by the petitioner was rejected by the Disciplinary Committee of Bar Council of India on 20.08.2001. It found that the petitioner had appeared in ULP Revision No.4/1990 before the Industrial Court and he was also appointed as Enquiry Officer in a Departmental Enquiry against present respondent no.4. The Committee observed that judicial propriety and discipline warranted that such a person holding brief should not have accepted ::: Uploaded on - 06/02/2018 ::: Downloaded on - 07/02/2018 01:19:05 ::: Judgment wp4398.02 4 the position as an enquiry officer.
4. Petitioner thereafter filed review petition and that review petition has also been dismissed by the Disciplinary Committee on 12.08.2002. Petitioner thereafter received a notice from the Disciplinary Committee to remain present before it on 07.02.2002. These two orders and notice to appear have been questioned in the present Writ Petition.
5. In this petition on 05.12.2002, notice came to be issued and ad-interim relief came to be granted, with the result the proceedings before respondent no.2 Disciplinary Committee came to be stayed. On 19.06.2003 while issuing Rule in the matter, that interim order has been continued. Said interim order operates even today.
6. It is not in dispute that immediately after receipt of first notice from the Disciplinary Committee, petitioner had approached this Court in Writ Petition No. 688/1997. This Court on 20.09.1999, disposed of that petition to enable the petitioner to seek statutory ::: Uploaded on - 06/02/2018 ::: Downloaded on - 07/02/2018 01:19:05 ::: Judgment wp4398.02 5 remedy of appeal.
7. Shri Chauhan, learned counsel for the petitioner submits that respondent no.4 has no where pointed out that the petitioner was a retainer counsel with his employer. Respondent no.4 also did not place on record vakalatnama to show that he was engaged as an Advocate, along with the complaint and affidavit, copy of the court order was placed before the Committee. In that order name of petitioner appeared as counsel for management. According to Shri Chauhan, learned counsel, this appearance that too on a particular date to advance arguments on a legal issue, as explained in paragraph no.3 of his written statement, could not have been viewed adversely.
8. To explain how legally bias need to be understood and what may be the professional misconduct, he has relied upon the following judgments :
(1) AIR 1976 SC 242 The Bar Council of Maharashtra .vrs. M.V. Dabholkar.
(2) (2001) 6 SCC 135 ::: Uploaded on - 06/02/2018 ::: Downloaded on - 07/02/2018 01:19:05 ::: Judgment wp4398.02 6
N.G. Dastane .vrs. Shrikant S. Shivde and another.
(3) AIR 1971 SC 22 M/s. Dalmia Dadri Cement Ltd..vrs. Murari Lal Bikaneria.
(4) 1964 (2) LLJ 139 Saran motors Pvt. Ltd. .vrs. Vishwanath and another.
(5) (2001) 2 SCC 221 D.P. Chadha vrs. Triyugi Narain Mishra and others.
(6) AIR 1999 SC 780 R. Janardhana Rao .vrs. G. Lingappa.
(3) (2000) 6 SCC 721 H.V. Panchaksharappa .vrs. K.G. Eshwar.
9. He further states that as pointed out in paragraph no.4 of the Writ Petition, sittings in enquiry were over on 20.10.1991 i.e. more than 26 years back and as such technically the issue may have become redundant. He contends that the prejudice due to bias, if any caused to petitioner may have been or could have been raised as a ground of challenge by respondent no.4. He adds that because of this complaint and the proceedings thereof, the petitioner has already suffered adverse consequences and a lenient view therefore, is warranted.
10. The perusal of paragraph no.4 of the complaint shows ::: Uploaded on - 06/02/2018 ::: Downloaded on - 07/02/2018 01:19:05 ::: Judgment wp4398.02 7 that the enquiry proceedings commenced on 17.06.1990 and continued upto 20.10.1991. The petitioner has urged that during said period, respondent no.4 submitted about 60 applications persistently demanding orders on each application immediately. The charges leveled against respondent no.4 were 29 in number and for a period of about 1975 - 1975 onwards.
11. Petitioner has not pointed out whether any enquiry report was then submitted by him in the enquiry. Similarly respondent no.4 though served has also not pointed out further developments in the matter. Records show that when review petition was heard by respondent no.2 Committee on 12.08.2002, respondent no.4 appeared before that Committee. However, after this court issued notice in the matter, though the notice was served upon him, he has chosen not to respond. Initially this Court issued notice before admission on 05.12.2002 and thereafter, Rule has been granted on 19.06.2003.
12. Material on record shows only one averment. The averment is, petitioner appeared as counsel for employer in ULP ::: Uploaded on - 06/02/2018 ::: Downloaded on - 07/02/2018 01:19:05 ::: Judgment wp4398.02 8 Revision before the Industrial Court once. This by itself is insufficient to infer any bias. Any inquiry officer was bound to receive his charges from employer of respondent no.4. In present situation, when period of more than 27 years has already expired and the enquiry, if any, may have also be over, we do not find it appropriate to observe anything more on the contentions of Shri Chavan, learned counsel for petitioner. Finding of bias if any, would have been and may have been relevant in departmental enquiry proceedings or challenge thereto.
13. Leaving issue regarding impact of alleged bias on disciplinary proceedings against respondent no.4 open, and as the sword of disciplinary action has been hanging for last about 27 years, we find it appropriate to quash the proceedings against the petitioner. Accordingly we make rule absolute in terms of prayer clause (2). No costs.
JUDGE JUDGE
Rgd.
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