Madras High Court
K.P. Ravichandran vs The Bar Council Of Tamil Nadu & on 25 August, 2022
Bench: R. Mahadevan, Mohammed Shaffiq
WP No. 2794 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Petition No. 2794 of 2020
and
CMP. No. 3237 of 2020
---
K.P. Ravichandran
Advocate
No.127/136-C, JKK Natarajah Nagar
Komarapalayam - 638 183
Namakkal District
having office at
D.No.66, Varnapuram 1st Street
Bhavani - 638 183
Erode District .. Petitioner
Versus
1. The Bar Council of Tamil Nadu &
Puducherry
rep. by its Secretary
High Court Campus
Chennai - 600 104
2. K. Peter
Son of Kolass
D.No.20-A-27, Kaveri Nagar
Mettur Dam - 636 401
Salem District
https://www.mhc.tn.gov.in/judis
1/17
WP No. 2794 of 2020
3. The Bar Council of India
rep. by its Secretary
No.21, Rouse Avenue Institutional Area
Near Bal Bhawan
New Delhi - 110 002 .. Respondents
Petition filed under Article 226 of The Constitution of India praying to
issue a Writ of Mandamus directing the first respondent to hear the petition in
I.A. No. 04 of 2020 filed to set aside the exparte order dated 14.12.2019 made
in DCC No.345 of 2018, on merits in exercise of the powers conferred under
Clause 7 (2) of the Chapter I, Part VII of the BCI Rules, by excluding the
period between 08.06.2019 and 14.09.2019 under Section 36 B of the
Advocates Act, 1961.
For Petitioner : Mr. N. Manoharan
For Respondents : Mr. C.K. Chandrasekaran for R1
Mr.S.R.Raghunathan for R3
ORDER
[Order of the Court was made by R. MAHADEVAN, J] The relief sought in this writ petition is to issue a Writ of Mandamus directing the first respondent to hear the petition in I.A. No. 04 of 2020 filed by the petitioner to set aside the exparte order dated 14.12.2019 made in DCC No.345 of 2018, on merits, in exercise of the powers conferred under Clause 7 (2) of the Chapter I Part VII of the Bar Council of India Rules, by excluding the period between 08.06.2019 and 14.09.2019 under Section 36 B of the Advocates Act, 1961, (in short, “the Act”).
https://www.mhc.tn.gov.in/judis 2/17 WP No. 2794 of 2020
2.The case of the petitioner as projected in the writ petition is as follows:
2.1. The petitioner was enrolled as an advocate and has been practicing in the Courts at Erode. During the course of his practice, the second respondent approached the petitioner and stated that he met with an accident on 16.07.2015 and suffered grievous injuries in his left leg; and therefore, he intended to file a claim petition before the competent Court as per the provisions of Motor Vehicles Act, 1988, seeking compensation for the injuries sustained by him.
2.2. Accordingly, the petitioner filed a claim petition on behalf of the second respondent. During the pendency of the same, at the request of the petitioner, in consultation with the second respondent, the claim petition was posted before the National Lok Adalat for exploring the possibility of settlement. During the hearing before the National Lok Adalat, the second respondent agreed to settle the dispute for Rs.2,67,930/- with the insurer and signed a settlement memo and an award was also passed to that effect. A cheque for the agreed claim amount of Rs.2,67,930/- was issued to the claimant/second respondent herein on 13.10.2016 as compensation.
2.3. After receipt of the cheque amount, the petitioner demanded his professional fee of Rs.25,000/- for having filed the claim petition and prosecuted it. However, the second respondent failed to fulfil his promise https://www.mhc.tn.gov.in/judis 3/17 WP No. 2794 of 2020 made to the petitioner and did not pay any amount towards professional fee.
On the contrary, he gave a complaint to the first respondent under Section 35 of the Act alleging that the petitioner has committed professional misconduct.
2.4. The complaint made by the second respondent was taken on file as DCC No.345 of 2018 and notice dated 28.07.2017 was issued to the petitioner. Upon receipt of the same, the petitioner submitted his detailed explanation and also entered appearance through his counsel Mr.C.Kulandaivel, Advocate, Chennai. Thereafter, on 27.04.2019, the petitioner filed his counter statement and was regularly appearing all the hearings of the case, along with his counsel. However, on 13.07.2019, the petitioner's counsel informed to him that the petitioner need not be present before the first respondent as the Elected Committee would take over the disciplinary proceedings; and that, he shall appear for enquiry, only after receipt of a fresh notice.
2.5. According to the petitioner, he did not receive the fresh notice dated 14.09.2019 issued by the Disciplinary Committee and the notice issued to his counsel was also received by some other person. As a result, on 09.11.2019, when the case was taken up for hearing, there was no representation for the petitioner, consequent to which, he was called absent and set exparte. Following the same, on 14.12.2019, an order was passed https://www.mhc.tn.gov.in/judis 4/17 WP No. 2794 of 2020 directing the petitioner to pay the compensation amount of Rs.2,68,000/- along with interest at 12% p.a. to the second respondent within a period of one month, besides, suspending him from practicing as an advocate for a period of two years. It was also observed by the first respondent that in default of payment of the said sum of Rs.2,68,000/- along with interest, the petitioner shall undergo suspension for further period of one year.
2.6. Aggrieved by the order dated 14.12.2019 passed by the first respondent, the petitioner filed two petitions viz., seeking an order of interim stay and to set aside the exparte order dated 14.12.2019. By order dated 11.01.2020, the Disciplinary Committee has granted an order of interim stay, but directed the petitioner to approach the third respondent to set aside the exparte order. Aggrieved over the same, the petitioner is before this court with the present writ petition for the aforesaid relief.
3.Mr.N.Manoharan, learned counsel for the petitioner submitted that the petitioner did not commit any professional misconduct, as alleged by the second respondent in his complaint. However, the first respondent based on the materials produced by the second respondent not shared with the petitioner, passed an order of punishment on 14.12.2019, against the petitioner, which is absolutely an exparte order. Immediately upon receipt of https://www.mhc.tn.gov.in/judis 5/17 WP No. 2794 of 2020 the order dated 14.12.2019, the petitioner filed I.A. No. 4 of 2020 to set aside the exparte order along with an application in I.A. No. 3 of 2020 seeking interim stay. By order dated 11.01.2020, the first respondent, pointing out the provisions of section 36B of the Act, directed the petitioner to approach the third respondent by filing an appeal and proceed with the petition to set aside the exparte order, but granted an order of interim stay, till such time. According to the learned counsel, as per Rule 7 (1) & (2) of Chapter I, Part VII of the BCI Rules, the first respondent is empowered to decide the application to set aside the exparte order dated 14.12.2019 without driving the petitioner to approach the third respondent by filing an appeal. However, the first respondent passed the said order dated 11.01.2020, rejecting the application to set aside the exparte order, that too, without taking note of the fact that after receipt of the complaint of the second respondent, the petitioner duly entered appearance, filed counter and appeared for all the hearings till 13.07.2019, without any default; he did not aware of the hearing date of the proceedings, as the fresh notice issued by the Elected Committee was not served on him and the further notice issued to his counsel was also not received by him; and hence, the order dated 14.12.2019 was passed in violation of the principles of natural justice. Therefore, the order passed by the first respondent, rejecting the plea of the petitioner to set aside the exparte order dated 14.12.2019 and https://www.mhc.tn.gov.in/judis 6/17 WP No. 2794 of 2020 directing him to exhaust the appeal remedy available before the third respondent, is arbitrary and illegal. It is also pointed out by the learned counsel that there was no Coram for hearing the case between 08.06.2019 and 14.09.2019, which period has to be excluded from the purview of Section 36 B of the Act; and an opportunity be given to the petitioner to contest the complaint of the second respondent, on merits, before the first respondent itself. With these submissions, the learned counsel prayed to allow this writ petition by setting aside the orders passed by the first respondent.
4.1. Per contra, Mr. C.K. Chandrasekaran, learned standing counsel for the first respondent would submit that the order dated 14.12.2019 cannot be termed as an exparte order, rather, it was passed on merits. Even as per the averment of the petitioner, he has filed his counter statement to the complaint preferred by the second respondent. The petitioner also admitted that he did not appear before the first respondent for the hearings, in view of non-service of fresh notice issued by the Elected Committee. Therefore, the first respondent, on perusal of the complaint of the complainant along with the documents filed thereto, as well as the counter of the petitioner, passed a detailed order on 14.12.2019, on merits. While so, it is not open to the petitioner to seek for setting aside the said order dated 14.12.2019 mainly on https://www.mhc.tn.gov.in/judis 7/17 WP No. 2794 of 2020 the ground that it was an exparte order. Adding further, the learned counsel submitted that the petitioner was given sufficient opportunities to put forth his defence which could stand testimony to the fact that he engaged a counsel of his choice and also filed a counter affidavit to the complaint of the second respondent. In such circumstances, the order dated 14.12.2019 is legally sustainable and it calls for no interference.
4.2. The learned standing counsel for the first respondent further submitted that the petitioner, without the consent of the complainant, participated in the Lok Adalat, settled the case for payment of Rs.2,68,000/- as compensation, obtained the blank cheque for the same in his name and took the entire compensation amount paid to the second respondent as his professional charges, leaving nothing for the complainant and thereby, he indulged in the act of professional misconduct. Therefore, the first respondent, based on the available materials, has come to a definite conclusion that the petitioner abused and misused his position as an advocate, cheated the complainant and misappropriated the entire accident claim of Rs.2,68,000/- thereby committed a clear misconduct within the meaning of Section 35 (1) of the Act. Thus, according to the learned counsel, the order dated 14.12.2009 passed by the first respondent, imposing punishment for his professional misconduct, is based on the material evidence and on merits. In any event, if https://www.mhc.tn.gov.in/judis 8/17 WP No. 2794 of 2020 the petitioner is aggrieved by the order of the first respondent, the only remedy available to him is to file an appeal before the third respondent, in view of the specific bar under section 36 B of the Act, in disposal of the complaint by the first respondent, after a period of one year. Stating so, the learned counsel submitted that the writ petition, without exhausting the appeal remedy, is not maintainable and hence, the same is liable to be dismissed.
5.The learned counsel for the third respondent submitted that according to section 36B of the Act, the State Bar Council is obliged to dispose the case within a period of one year from the date of receipt of the complaint or from the date of initiation of the disciplinary proceedings, failing which, the matter will be transferred to the Bar Council of India for enquiry and disposal. However, he submitted that he has no say in this matter, since the case files pertaining to the petitioner, have not been received so far.
6.We have heard the learned counsel appearing for the parties and perused the materials placed on record.
7.It is seen that the second respondent preferred a complaint on 13.04.2017 to the first respondent for the alleged professional misconduct https://www.mhc.tn.gov.in/judis 9/17 WP No. 2794 of 2020 committed by the petitioner, to which, the petitioner filed his counter statement on 28.07.2017. Subsequently, by resolution no.600 of 2018 dated 28.09.2018, the said complaint was referred to the disciplinary committee for enquiry and disposal. Thereafter, the complaint was taken on record as DCC No.345 of 2018, in which, the petitioner entered appearance through his counsel and filed his counter. However, on 09.11.2019, there was no representation for the petitioner, which compelled the Disciplinary Committee to set him exparte and proceed with the case, on merits. Finally, on 14.12.2019, the first respondent passed the order of punishment against the petitioner. Subsequently, the petitioner preferred two applications seeking to set aside the exparte order and grant an order of stay. However, by order dated 11.01.2020, the first respondent placing reliance on the provisions of section 36B of the Act, rejected the application to set aside the exparte order and directed the petitioner to approach the third respondent for the same, but granted an order of stay till such time. Therefore, this writ petition by the petitioner.
8.It is the specific case of the petitioner that the allegation of professional misconduct levelled against him by the second respondent is baseless and without any substance; however, upon receipt of the complaint, he duly filed his counter to the same and also appeared all the hearings along https://www.mhc.tn.gov.in/judis 10/17 WP No. 2794 of 2020 with his counsel, till 13.07.2019; thereafter, due to non-receipt of the fresh notice dated 14.09.2019 to the petitioner and the further notice dated 28.09.2019 to the petitioner's counsel, issued by the newly elected disciplinary committee, the petitioner did not appear for the subsequent hearings either in person or through his learned counsel, which is neither wilful nor wanton; and hence, the exparte order dated 14.12.2019 passed by the first respondent contrary to the principles of natural justice, will have to be set aside. It is further contended on the side of the petitioner that there was no Coram for the period from 08.06.2019 to 14.09.2019 and hence, the said period may be excluded for determining the limitation period for disposal of the disciplinary case by the first respondent and an opportunity be provided to the petitioner to contest the case on merits.
9.On the other hand, it is stated on the side of the first respondent that the petitioner did not appear for the hearings on 13.07.2019, 14.09.2019 and 28.09.2019 and even on 09.11.2019, which prompted the first respondent to pass the order dated 14.12.2019 slapping an order of punishment on the petitioner, on merits, in the light of the available documents and therefore, the said order is not an exparte order. It is further submitted that according to section 36B of the Act, the first respondent has to dispose the case within a https://www.mhc.tn.gov.in/judis 11/17 WP No. 2794 of 2020 period of one year from the date of initiation of the proceedings and hence, the petitioner was rightly directed to approach the third respondent / Bar Council of India for setting aside the exparte order, while granting an order of stay till such time, by the first respondent, by order dated 11.01.2020.
10.It is evident from the order dated 14.12.2019 that upon receipt of the complaint of the second respondent, the petitioner entered appearance by engaging a counsel and also filed his counter statement repudiating the allegations levelled against him. However, after filing of the proof affidavit and posting the case for cross examination of the complainant, the petitioner failed to appear for the hearings on 13.07.2019, 14.09.2019, 28.09.2019 as well as on 09.11.2019, which resulted in the order of punishment passed against him by the first respondent. Thus, it is crystal clear that the order dated 14.12.2019 came to be passed by the first respondent, without hearing the petitioner and only on the basis of the materials placed by the second respondent / complainant and hence, the same is an exparte order. It is also evident from the records that when the petitioner sought to set aside the said order dated 14.12.2019, on the ground of violation of principles of natural justice, the first respondent, citing the provisions of section 36B of the Act, rejected the plea of the petitioner to set aside the exparte order and relegated https://www.mhc.tn.gov.in/judis 12/17 WP No. 2794 of 2020 him to approach the third respondent for appropriate relief, but granted an order of stay to the petitioner till such time. However, during the course of argument, the learned standing counsel appearing for the first respondent, on instructions, submitted that the petitioner's case has not been transferred to the file of the third respondent, till date.
11.Thus, the overall appreciation of the factual matrix would lead to an irresistible conclusion that the first respondent, without hearing the petitioner and only based on the input received from the second respondent / complainant, passed the order of punishment dated 14.12.2019, after having held that the petitioner has committed the professional misconduct. In the opinion of this court, such adverse order passed against the petitioner, solely relying on the materials produced by the second respondent, thereby causing serious prejudice to the petitioner, is violative of principles of natural justice, as the rule of audi alteram partem has not been complied with by the first respondent. At this juncture, it is apt to quote the decision of the Hon'ble Supreme Court in State of UP v. Sudhir Kumar Singh [2020 SCC online SC 847], wherein, the scope and applicability of audi alteram partem rule were elaborately dealt with, after surveying the entire case law and paragraph no.39 reads as follows:
https://www.mhc.tn.gov.in/judis 13/17 WP No. 2794 of 2020 “39. An analysis of the aforesaid judgments thus reveals:
(1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3)No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4)In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5)The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”
12.In the light of the aforesaid legal proposition, the order dated 14.12.2019 passed by the first respondent is liable to be set aside, on the solitary ground of violation of principles of natural justice. In view of the same coupled with the admitted fact that there was no coram between 08.06.2019 and 14.09.2019 for hearing the disciplinary case and the case of the petitioner is yet to be transferred to the file of the third respondent even after the lapse of a period of one year, the subsequent order dated 11.02.2020 passed by the first respondent, rejecting the application being I.A.No.4 of 2020 filed by the https://www.mhc.tn.gov.in/judis 14/17 WP No. 2794 of 2020 petitioner seeking to set aside the ex parte order dated 14.12.2019, by directing him to approach the Bar Council of India for the relief sought therein, placing reliance on the provisions of section 36B of the Act, does not have legs to stand.
13.While holding so, this Court is not oblivious of the fact that the prayer made in this writ petition is only for issuance of a writ of mandamus and not a writ of Certiorarified mandamus. However, invoking Article 226 of the Constitution of India, in order to subserve the interests of justice, by moulding the relief, this Court sets aside both the orders dated 14.12.2019 and 11.01.2020 passed by the first respondent and remits the matter to the first respondent for reconsideration, on merits and in accordance with law, as expeditiously as possible, in any event, not later than two months from the date of receipt of a copy of this order. Needless to state that the first respondent shall pass orders afresh, only after affording due opportunity of hearing to the petitioner as well as the second respondent.
14.This writ petition is disposed of in the above terms. No costs. Consequently, connected miscellaneous petition is closed.
(R.M.D., J) (M.S.Q., J)
25.08.2022
rsh
https://www.mhc.tn.gov.in/judis
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WP No. 2794 of 2020
To
1. The Secretary, Bar Council of Tamil Nadu &
Puducherry
High Court Campus
Chennai - 600 104
2. The Secretary, Bar Council of India
No.21, Rouse Avenue Institutional Area
Near Bal Bhawan
New Delhi - 110 002
https://www.mhc.tn.gov.in/judis
16/17
WP No. 2794 of 2020
R.MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
rsh
WP No. 2794 of 2020
25.08.2022
https://www.mhc.tn.gov.in/judis
17/17