IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4168 OF 2008

Markand C. Gandhi        ...Appellant(s)

Versus

Rohini M. Dandekar          ...Respondent(s)

O  R  D  E  R

Heard learned counsel appearing for the parties and Bar Council  of

India [for short, “B.C.I.”].

By the impugned order, B.C.I.  recorded a finding that the appellant

had committed professional misconduct and suspended him from practising as an

advocate before any court or authority in India for a period of five years.  While

concluding  the  disciplinary  proceeding  cost  of  Rupees  five  thousand  has  been

awarded against the appellant.  It was directed that, in case the cost awarded is not

paid within a period of one month, the period of suspension shall be extended for a

further period of six months.

The sole respondent filed a complaint in the year 1984 before the Bar

Council  of  Maharashtra  [for  short,  “the  State  Bar  Council”]  for  taking

disciplinary  action  against  the  appellant  as,  according  to  the  complainant,

appellant  had  committed professional misconduct.  As the

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complaint could not be disposed of within the period of one year, as  required

under law, the same was transferred to the B.C.I.  In view of the nature of the

order that we propose to pass, it is not necessary to state respective cases of the

parties.  Suffice it to say that, on the pleadings of the parties, following issues were

framed by the Disciplinary Committee of the B.C.I.:

“1.  Whether on 8th June, 1977, the respondent gave a threat to the petitioner as alleged? OPC

2.  Whether the respondent is guilty of preparing and drafting documents as alleged in Part No.7 of the complainant to the detriment of the complainant and her family members? OPC

3.  Whether the respondent accepted the briefs from persons whose interest was in clash to the interest of the complainant and her family member and thereby caused loss of the damage to the complainant as alleged?

4.  Whether the respondent issued a false certificate regarding marketability  of  title  with  respect  to  the  disputed  property with  a  view  to  take  illegal  gains  and  thereby  committed professional misconduct as alleged? OPC

5.  Whether the Respondent continued the said certificate to be used for illegal gains despite notice, if so to what effect? OPC

6.   Whether the respondent  in collusion with  Mr.  Vora,  the Architect and builder Mr. B.S. Jain committed illegal acts as alleged and as  a  result  made personal  gains  and committed profession misconduct? OPC

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7.   Whether  the  respondent  helped  the  builder  and  the Architect in their unauthorised acts to cross wrongful acts to the complainant as alleged? OPC

8.   Whether  the  respondent  is  guilty  of  having  committed professional  or  other  misconduct  as  alleged  vis  a  vis  the complainant and her family members on the one hand and the Architect and the builder on the other hand? OPC”

The impugned order runs into 23 pages.  Upto the middle of Page 10,

the Committee has referred to cases of the parties;  from middle  of  Page 10 to

middle of Page 11, issues have been mentioned; from middle of Page 11 to the top

of Page 22, the Committee has referred to the evidence, oral and documentary,

adduced on behalf of the parties without discussing the same and recording any

finding whatsoever in relation to the veracity or otherwise of the evidence; and

thereafter disposed of the proceeding which may be usefully quoted hereunder:

“We have gone through the records. The issues were framed on  18-8-1990.  Issue  No.  1  relates  to  a  threat  given  by  the respondent to the complainant on 8-6-1977. This issue is not related to the professional misconduct and in this regard the complainant has not submitted any documentary evidence to prove her stand.

As far as the issue No. 2 is concerned, this is a very important issue. The complainant has submitted document in support of her contention and proved the issue. This fact cannot be denied by oral version, as there is documentary record.

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As far as the issue No. 3 is concerned, this is also proved by the complainant  by  her  evidence.  Issue  No.  4  relates  to  the certificate issued by the respondent. This has also been proved by the complainant by documentary proof which is on record. Likewise Issue No. 6 is also proved by documentary proof.

Issues Nos. 6 to 7 relate to one Mr. Vora, architect and builder and Mr. B.S. Jain and the respondent.

The main issue in this controversy is issue No. 8 i.e., whether the respondent  is  guilty  of  professional  misconduct  or other misconduct. In this respect it is the admitted position before the Committee that some documents were already on record and retained by the respondent and the certificate issued by the respondent with regard to the property in question. It is also admitted position that in this matter a compromise letter was filed by the parties earlier.

We have heard the arguments and we have also perused the documents. The complainant has proved her allegations made in the complaint against the respondent. The allegations made are very serious. We are of the opinion that the respondent has committed  professional  misconduct  and  thus  we  hold  him guilty  of  professional  misconduct  and  suspend  him  from practice as an advocate before any court or authority in India for  a period  of  five  years and we also impose  a cost  of  Rs. 5,000/- to be paid by him to the Bar Council of India which on deposit will go the Advocates Welfare Fund of the Bar Council of India. If the amount of cost is not paid within one month from the date of receipt of this order, the suspension will  be extended for six months more.”

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From a bare perusal of the order, it would appear that, virtually, there

is  no discussion of  oral or documentary evidence adduced by the parties.   The

Committee has not recorded any reason whatsoever for accepting or rejecting the

evidence adduced on behalf of the parties and recorded finding in relation to the

misconduct by a rule of thumb and not rule of law.  Such an order is not expected

from a Committee constituted by a statutory body like B.C.I.  

We are clearly of the opinion that the finding in relation to misconduct

being in colossal ignorance of the doctrine of audi alteram partem is arbitrary and

consequently  in  infraction  of  the  principle  enshrined  in  Article  14  of  the

Constitution of India, which make the order wholly unwarranted and liable to be

set aside. This case is a glaring example of complete betrayal of confidence reposed

by the Legislature in such a body consisting exclusively of the members of legal

profession which is considered to be one of the most noble profession if not the

most.

Accordingly,  the appeal is allowed,  impugned order rendered by the

Disciplinary Committee of the B.C.I. is set aside and the matter is remitted, for

fresh consideration and decision on merits in accordance with law. Chairman of

the B.C.I. will see that this case is not heard by the Disciplinary Committee which

had disposed of the complaint by the impugned order and an altogether different

Committee shall be constituted for dealing with this case.  

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We hope and trust that in future the Chairman or any other person

empowered to constitute Disciplinary Committee shall  act in such a manner so

that  the  committee  is  manned  by  persons  who  can  decide  the  matter  with

proficiency.

It is unfortunate that, though the complaint was filed before the State

Bar Council in the year 1984 and transferred to the B.C.I. and numbered as Case

No.107 of 1986, the matter remained pending before it for twenty two years.  The

Chairman of the B.C.I. would see that, in future, complaints are disposed of with

reasonable despatch and not in this leisurely fashion so that people may repose

confidence  in  the  B.C.I.,  which  is  a  statutory  and  autonomous  body.   The

Committee  shall  be  constituted  within  one  month  from  the  date  of

receipt/production  of  copy  of  this  order  and,  thereupon,  the  re-constituted

Committee shall dispose of the matter after giving opportunity of hearing to the

parties in accordance with law within a period of six months from the date of its

constitution.

......................J.     [B.N. AGRAWAL]

           .....................J.     [G.S. SINGHVI]

New Delhi, July 17, 2008.