Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has issued a series of directions after it was brought to its notice that in last five years, 1,273 complaints filed under Section 35 of the Advocates Act have been transferred to the Bar Council of India as the concerned State Bar Council(s) did not dispose of the complaint(s) under 3 Section 35 of the Advocates Act within one year

Under the Advocates Act, 1961 the State Bar Council was duty bound to dispose of the complaint received by it under Section 35 expeditiously and in each case the proceedings had to be concluded within a period of one year from the date of receipt of complaint.

Submissions by the Bar Council of India

Amongst the 1273 transferred cases, a total of 646 cases have been received by the Bar Council of India during the period commencing January, 2019 to December, 2021 – during the pandemic situation. The said transferred cases could not be disposed of by the Bar Council of India as the hearing could not be conducted through virtual mode and the complainants were required to be physically present before the Disciplinary Committee to lead their evidences. During the period starting mid-March, 2020, the State Bar Councils as well as the Bar Council of India have not been able to hold physical sittings of the Disciplinary Committees.

“… pendency of transferred cases before the Bar Council of India is not intentional and that the Bar Council of India is making every possible effort to clear the pendency of such transferred cases by conducting expeditious hearings.”

Analysis

The Court was not at all impressed by the reasoning given by Bar Council of India for not disposing of the transferred complaint(s) by the Disciplinary Committee of the Bar Council of India.

The Court noticed that COVID-19 pandemic commenced only in March, 2020. As per the chart submitted by the Bar Council of India, in the year 2016, a total of 171 cases; in the year 2017, a total of 242 cases; in the year of 2018, a total of 214 cases and in the year 2019, a total of 490 cases were transferred to the Bar Council of India. At-least those cases could have been disposed of by the Bar Council of India at the earliest.

“One can appreciate the delay in disposal of the transferred complaint(s) received in the year 2020 and 2021 due to COVID-19 pandemic but not for the earlier period.”

Further, it was noticed that disposal of a complaint received by the State Bar Council under Section 35 within a period of one year from the date of receipt of such complaint is mandatory and the concerned State Bar Council(s) have to dispose of such complaints as expeditiously and in each case the proceeding shall have to be concluded within a period of one year. Only in an exceptional case, by giving valid reasons to be recorded as to why the complaint could not be disposed of within a period of one year, such complaints are required to be transferred to the Bar Council of India as provided under Section 36B of the Advocates Act. Therefore, the transfer of the complaint(s) received under Section 35 of the Advocates Act from the State Bar Council to the Bar Council of India is an exception.

“… for reasons best known to the concerned State Bar Councils, the complaints are not being disposed received by them under Section 35 within one year. This may be because the complaints are filed against the fellow Advocates and they would not like to displease the Advocates against whom the complaints are made. There could also be some valid reasons for not disposing of the complaint(s) within a period of one year. But for the same, the reasons have to be assigned/recorded as to why the complaint(s) could not be disposed of within a period of one year. In many cases, the complaints are deliberately kept pending for more than one year, so that the same shall be transferred to the Bar Council of India as provided under Section 36B of the Advocates Act, by passing the buck so to say.”

The object and purpose of section 36B of the Act is not to encourage delay in the disposal of the complaint so as to enable the complaints to be transferred to the Bar Council of India by operation of law and thereby increase the burden on the All India body and at the same time create a leeway for the State Bar Council to not act on the complaints and to simply wait for the passage of time so that by operation of law the said complaint would stand transferred to the Bar Council of India. In fact, section 36B of the Act mandates that there should be no tardiness by the State Bar Council in completion of the proceedings on the complaints received by them within a period of one year as stated in the said provision. When the number of complaints transferred from the State Bar Councils to Bar Council of India is this high, it implies that the States Bar Council have not been discharging their duties by not disposing the complaints within a period of one year as provided under section 36B of the Act.

Directions

  1. Bar Council of India is directed to issue appropriate directions as stated by the Chairman of the Bar Council of India. The Manan Kumar Mishra, the Chairman of the Bar Council of India had submitted that necessary guidelines/directions in exercise of the powers under Section 48B shall be issued by the Bar Council of India to all the State Bar Councils to dispose of the complaint(s) received under Section 35 of the Advocates Act within a period of one year and only in exceptional case and for the reasons to be recorded by the concerned State Bar Council and if for valid reasons, the said complaint could not be disposed of within a period of one year, then and then only such complaint/proceeding be transferred to the Bar Council of India as mandated under Section 36B of the Advocates Act.
  2. Bar Council of India to finally dispose of the transferred complaints, the particulars of which are referred to hereinabove expeditiously but not later than one year from today and for which even the Disciplinary Committee of the Bar Council of India may hold circuit hearings.
  3. State Bar Councils to decide and dispose of the complaint(s) received by it under Section 35 expeditiously and to conclude the same within a period of one year from the date of receipt of the complaint as mandated under Section 36B of the Advocates Act.
  4. Only in exceptional case and for the reasons to be recorded where it is found that for valid reasons, the proceedings could not be completed within the period stipulated under Section 36B of the Advocates Act, then and then only such proceedings shall stand transferred to the Bar Council of India and on such transfer the Bar Council of India shall also dispose of the such transferred proceedings/complaints within a period of one year from receipt of such transferred proceedings.
  5. Having regard to the aforesaid provisions and bearing in mind the fact that 1273 complaints (minus 27 complaints which are disposed) are pending before the Bar Council of India, it is just and necessary that a mechanism be found for disposal of the said complaints in accordance with the procedure prescribed.
  6. For an efficient and quick disposal of the complaints by the Bar Council of India vis-à-vis those complaints which have been transferred to it as per section 36B of the Act, the Bar Council of India may consider empanelling experienced and seasoned advocates and/or retired judicial officers to act as Inquiry Officers where an inquiry would be necessitated. On such inquiry being concluded the report of the Inquiry Officers could be received by the Bar Council of India. On consideration of the said inquiry report, the Bar Council of India could pass appropriate orders on the complaint. The State Bar Council could also enlist a panel of Inquiry Officers who could be entrusted with the conduct of the inquiry as and when the same is necessitated on a complaint. The disciplinary committee of the State Bar Council on consideration of the said inquiry report may pass orders in accordance with the provision of section 35 of the Act.
  7. The Bar Council of India to also issue suitable directions to the State Bar Council to conclude the proceedings from the complaints filed against the advocates within a period of one year since the intention of the Parliament appears to be to decide on the said complaint within the said period which is a reasonable period.
  8. In order to enable the State Bar Council to dispose of the complaints within a period of one year as provided under section 36B of the Act, it is incumbent for the respective disciplinary committees of the State Bar Councils meet on a regular basis.

[K. Anjinappa v. KC Krishna Reddy, 2021 SCC OnLine SC 1275, decided on 17.12.2021]


Counsels

For BCI: Advocate Ardhendumauli Kumar Prasad


*Judgment by: Justice MR Shah

Case BriefsSupreme Court

Supreme Court: In a Judgment pronounced by Dipak Mishra, CJ for the Full Court comprising of himself and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., the Supreme Court held an advocate on the panel of Assistant Government Advocates was not ‘in service’ of the Bihar State Government.

The petitioner, State Election Commissioner (Bihar), filed an appeal against the decision of Patna High Court, wherein the order of the Commission disqualifying Respondent 1 from the post of Member in the Panchayat Samiti was quashed. Respondent 1 was empanelled as an Assistant Government Advocate by the Bihar State Government. The State EC had based its order of disqualifying Respondent 1 on Section 139(1) (c) of Bihar Panchayat Raj Act, 1993 which disqualifies a person from holding the post of Member of the Panchayat Samiti if he is in service of Central or State Government or any local Authority. The State EC held that since Respondent 1 was receiving fees for the cases conducted by him from the Government, he would be deemed to be in service of the State. The Single Judge observed that the appointment of a Government Pleader is governed by an executive instruction which is a tenure appointment; he remains a legal practitioner for all purposes and intent. The relationship between the State and the Assistant Government Pleader is that of ‘lawyer and client’ and not of ‘master and servant’. Further, the expressions “in service” of the State Government and holding “office of profit” in State Government were not synonymous; a person may hold an office of profit in the State but that doesn’t necessarily mean that he is in service of the State Government.

Supreme Court noted that the key word in issue was ‘service’ as mentioned in Section 139(1)(c) and (d). The Court thought it apposite to restate the legal position regarding the distinction between “office of profit” and “service under the Government”. The Court revisited a catena of Judgments to ultimately find favour with the distinction as brought out by the Single Judge. It was observed that conduct of an advocate is subject to discipline of the Bar Council, and as such Respondent 1 was not amenable to any disciplinary proceedings under the State Government. There was no master-servant relationship. Further, even if some remuneration was attached to the office, Respondent 1 could not be treated to be in service of the State Government. In view of such conclusion, the appeal preferred by the State EC was dismissed. [State Election Commissioner, Bihar v. Janakdhari Prasad,2018 SCC OnLine SC 659, decided on 03-07-2018]