Bombay High Court
Premlal S/O Kanhyalal Jaiswal vs The State Of Maharashtra & Another on 24 November, 1998
Equivalent citations: 1999(2)BOMCR223
Author: B.H. Marlapalle
Bench: B.H. Marlapalle
ORDER B.H. Marlapalle, J.
1. Heard learned Counsel for petitioner and learned Government Pleader for the respondents. Rule. Rule made returnable forthwith.
2. The petitioner has challenged an order passed by the learned District and Sessions Judge, Jalgaon on 21-1-1998, thereby declaring the petitioner as a Tout' under section 36 of the Legal Practitioners Act, 1879 and his licence as 'Petition Writer' has been cancelled under the provisions of the Civil Manual. The learned District & Sessions Judge, Jalgaon, has further directed that the petitioner shall be excluded from precincts of the Civil Court, Bhadgaon, or any other courts from Jalgaon district, except when he is summoned or required by any Court to appear on a particular date before it or with prior permission of the Court.
3. It appears that at the relevant time there were in all eight Advocates practicing before the Civil Court, Bhadgaon, dist. Jalgaon, who were residents of village Bhadgaon and out of these eight Advocates, six have filed a written complaint dt. 19-6-97 against the petitioner who was a 'Petition Writer' in the said Court. It was alleged that the petitioner was indulging in 'toutism', he posed himself as an 'Advocate' and collected fees from the litigants. The Advocates have also alleged that the petitioner had assaulted and threatened some Advocates and thus created terror, as a result of which, it had become difficult for the Advocates to work.
4. The learned District & Sessions Judge, Jalgaon, therefore, ordered a preliminary investigation into the said complaints through Shri V.B. Kamkhedkar, 3rd Joint Civil Judge, Sr. Division, Jalgaon. After recording the statements of all the complainant - Advocates and after examining the relevant record, Shri Kamkhedkar submitted his report on 1-8-1997. As the learned District & Sessions Judge, Jalgaon, found a prima facie case against the petitioner, for carrying out a proper enquiry, taking into consideration the gravity of the allegations against the petitioner, he appointed Shri A.S. Shivankar, 6th Additional District Judge as an Enquiry Officer. The said Enquiry officer conducted the enquiry by examining the complainants who were subjected to a cross-examination by the petitioner. The Enquiry Officer submitted his report on 14-11-1997 to the learned District & Sessions Judge, Jalgaon. The Enquiry Officer held that the petitioner was indulging in corrupt practices which could be branded as 'toutism', he misbehaved with the advocates practicing at Bhadgaon and developed objectionable relations with the staff members & police and did the work of Advocates by accepting fees from the clientele. The Enquiry Officer, therefore, concluded that the conduct of the petitioner vitiated the healthy atmosphere of the Bar and made it difficult for the Advocates to work in a peaceful and professional manner. The Enquiry Officer, therefore, recommended that the petitioner be declared as 'Tout' and his licence as a 'Petition Writer' be cancelled.
5. The learned District & Sessions Judge, Jalgaon, on receipt of the Enquiry Report, issued a show cause notice to the petitioner as to why he should not be declared as a 'tout' and why his licence as 'Petition Writer' should not be cancelled permanently. The petitioner replied the said show cause notice by filing his say dt. 3-12-1997, denied all the allegations and lastly prayed that his licence should not be cancelled permanently taking into consideration that he was the only earning member in his family. In his written say dt. 3-12-1997, the petitioner had complained that he was not allowed to examine the witnesses as well as cross examine the complainants. It was then brought to the notice of the learned District and Sessions Judge, Jalgaon, by the Enquiry Officer that the petitioner's request for producing witnesses in support of his case was turned down by him by a detailed order and the delinquent was given due opportunity to cross examine the complainants - witnesses.
6. The learned Counsel for the petitioner urged before us that no independent witnesses were examined by the Enquiry Officer, one of the com-plainants had a private grudge against the petitioner and to settle the personal scores, a false complaint was lodged, against the petitioner, written representation submitted by five Advocates, who are residents of Pachora but practicing before the Court at Bhadgaon, on some days in a week have not been considered by the Enquiry Officer and the learned District & Sessions Judge, though these written representations were in support of the petitioner and even the written representation filed by Shri A.D. Wagh, Advocate who was the Secretary of the Advocates Bar at Bhadgaon, did not consider them. The learned Counsel for the petitioner further submitted that unless the resolution with a majority is passed by the Bar, the impugned order could not be sustained. We are afraid, these submissions made by the learned Counsel for the petitioner are devoid of merits. Passing of resolution by the Bar is one of the circumstance that are required to be considered while passing the order under section 36 of the Legal Practitioners' Act, 1879 and it cannot be said that unless such a resolution is passed, no order could be passed under the said section. The learned Counsel for petitioner, in support of his contentions, has relied upon the judgment of this Court in the case of Maganbhai Nathabhai v. Dinkarrao N. Desai, A.I.R. 1932 Bom. pg. 596 and another in the case of one Advocate from Banaras, reported in (A.I.R. 1932 Allahabad pg. 492). We are afraid that both the judgments do not advance the case of the petitioner and hence, reliance is misplaced.
7. After satisfying himself that the Enquiry was conducted by following proper procedure, the learned District & Sessions Judge, in para No. 11 of the impugned order has observed as under :
"I have carefully perused the papers of enquiry and the enquiry reports and the say of Shri Jaiswal. Now, I am satisfied that the enquiry has been held as per the principles of natural justice. Shri Shivankar has submitted detailed enquiry report. Shri Jaiswal was given full opportunity to lead evidence and cross examine the witnesses. I find all the witnesses, who are practicing Advocate of Bhadgaon, trustworthy. The witnesses have also produced certain letters, authorship of which is not disputed by Shri Jaiswal. Particularly the postcards produced at page 55 to 61 and 69 go a long way showing that Shri Jaiswal was doing the activities beyond the scope of Petition Writer. The witnesses unanimously support the contents of the complaint application. There is nothing in the cross-examination of the witnesses to show cause for the witnesses to depose falsely by levelling such grave allegations. There is nothing on record to support the credibility of all the Advocates and therefore, no reason to disbelieve their evidence. It has been proved that Shri Jaiswal collects briefs and engages Advocates, poses himself as an Advocate or as an employee of Court, he collects fees from the litigants and pays only part of the same to the Advocates engaged by him, he creates terror by giving threats and assaulting the Advocates, he indulges in corrupt practices and toutism. By such conduct of Shri Jaiswal, the Advocates are unable to work in the Court. If Shri Jaiswal is allowed to continue to work as a "Petition Writer', there is every possibility of more deterioration of healthy atmosphere of Court working. Instead of doing his assigned work, he is in the habit of indulging corrupt practices by entertaining Court employees."
8. We are of the view that the learned District & Sessions Judge, Jalgaon, has applied his mind to the report of the Enquiry Officer along with the proceedings conducted by him, the seriousness of the charges established against the petitioner and the necessity to maintain a conducive atmosphere in the Court premises. The enquiry has been conducted properly and the same is not vitiated on any count. We have noted that six out of eight advocates who were residents of village Bhadgaon have not only submitted a written complaint but have also come forward to depose before the Enquiry Officer and they were allowed to be cross examined by the petitioner. Their testimony cannot be brushed aside solely for the reason that other five Advocates who were residents of Pachora (Neighbouring taluka in Jalgaon district) and Members of Advocates' Bar who were practicing before the Bhadgaon Court on few days in a week were not allowed to be examined as witnesses in support of the petitioner. There was reasonable and sufficient evidence before the Enquiry Officer to record his finding against the petitioner. We are satisfied that there is no procedural defect in the enquiry conducted and the learned District & Sessions Judge, Jalgaon, before forming his opinion to pass the impugned order against the petitioner, has considered the preliminary investigation report as well as enquiry carried out by two different judicial officers. The reasoning given and conclusions drawn by the learned District & Sessions Judge, Jalgaon, in the impugned order are proper.
9. For the reasons stated hereinabove, the petition is devoid of merits and no case is made out to interfere with the impugned order passed by the learned District & Sessions Judge, Jalgaon. The petition, therefore, deserves to be rejected and the same is hereby rejected. Rule is discharged with no orders as to costs.
After pronouncement of the judgement, Shri Warma, learned Counsel for the petitioner, by oral application, sought leave to appeal. Prayer rejected, as the case does not involve a substantial question of law of general importance.
10. Petition dismissed.