Bombay High Court: In the present case, petitioner prayed for urgent ad-interim relief of stay to the impugned order which was stated to be passed by Respondent 2, Bar Council of India (‘BCI’), thereby suspending petitioner’s licence to practice for two years, although the complaint against petitioner was filed before Respondent 1, Bar Council of Maharashtra and Goa (‘BCMG’) under Section 35 of the Advocates Act, 1961 (‘the 1961 Act’). The Division Bench of G. S. Kulkarni and Advait M. Sethna, JJ., opined that not only substantive fairness, but procedural fairness was required to be adhered to, by respondents in conducting the impugned proceedings against petitioner. The Court thus till final disposal of the petition, stayed the impugned order dated 14-04-2024 passed by BCI and held that petitioner was entitled to practice as an advocate, duly enrolled on the rolls of the BCMG.
Background
The three advocates-complainants, were members of the Advocate Association of Western India (‘AAWI’) were aggrieved by certain actions of petitioner in respect of an incident which was alleged to have taken place in Room No.18 -Bar Room, provided to the AAWI, on the premises of the Bombay High Court. The alleged incident was dated 04-04-2016 where it was stated that petitioner had thrown on the floor the briefs of the complainants and that such actions were videographed by one of the complainants. The complainants stated that they, being the members of the AAWI, were sitting at a particular place in Room No.18, and their place was used by petitioner to their inconvenience and thus due to which, there were quarrels and disputes between petitioner and these complainants.
Counsel for petitioner stated that after one year and five months of such incident, the three complainants lodged a complaint with BCMG on 08-09-2017 titled as a complaint under Section 351 of the 1961 Act. It was stated that petitioner was using the premises of AAWI although she was not its member and she was also using the facilities of electricity, air conditioning, and charging her laptop and mobile phone, which was alleged to be without any authority. It was submitted that complainants case against petitioner was a retaliation/counterblast, to the previous incidents including complaints made by petitioner against some members of the BCMG in respect of which criminal proceedings under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 were pending.
It was also submitted that no opportunity was granted to petitioner, to rebut the affidavits at the hearing held on 14-04-2024, which in law could not be termed as a lawful hearing, also in which none of the complainants were present.
Analysis, Law, and Decision
The Court found it quite astonishing to note that the original order was in the file of the BCI and all other proceedings of the complaint which included notice of hearing dated 02-04-2024 issued by BCMG, was with BCMG.
The Court stated that counsel for respondents could not controvert petitioner’ contentions on the procedural fairness required to be followed in adjudicating the complaint made to BCMG and proceeding being not initiated before the BCI, and in such context, petitioner not being intimated of the transfer of the proceedings to the BCI, especially when at all material times, both BCMG and BCI were aware of the status and the factual position of the proceedings.
The Court stated that the impugned order entailed civil consequences, as it had the effect of taking away the source of livelihood of petitioner who was an Advocate having a standing of 24 years. The Court opined that not only substantive fairness, but procedural fairness was required to be adhered to, by respondents in conducting the impugned proceedings against petitioner.
The Court opined that the principles of natural justice appeared to have been thrown to the winds which was expected from a responsible statutory body, as the affidavits of the complaint dated 13-04-2024 were served on petitioner on the day of the hearing i.e., on 14-04-2024 without any opportunity being granted to petitioner to deal with such new material, and on the same day, the impugned order was passed.
The Court noted petitioner’s contention that the basic reason for the proceedings of the complaint being initiated against petitioner by the three complainants was as there were disputes between petitioner and certain advocates who were members of the BCMG. The Court opined that petitioner’s contention deserved appropriate consideration when the complaint was filed over one year and five months of the alleged incident having taken place, in Room No.18 of the AAWI.
Further, almost seven years were taken to pass orders on the complaint and although an order was passed on 14-04-2024, but the same forwarded to petitioner, after almost four months, and was received by petitioner on 02-09-2024 itself raised serious doubts on the legal propriety of the impugned order. It was neither acceptable nor logical, as rightly contended on petitioner’s behalf.
The Court also opined that things happened too casually and the record indicated that complaint was filed under Section 35 of the 1961 Act before the BCMG and as to when and under what procedure it was transferred to the BCI was not informed to petitioner. Further, a notice dated 02-04-2024 intimating petitioner about the date of hearing on 14-04-2024, was issued by the Secretary of the BCMG, which also did not indicate that the jurisdiction of the committee was not with the BCMG but with the BCI and/or that the adjudicating forum was not the committee of the BCMG but the BCI.
The Court stated that the intent of the complainants was something else and quite extraneous to the alleged incident of 04-04-2016. The Court further stated that in the present case, the AAWI itself did not make any complaint against petitioner and even if such complaint was to be made by any member, it could not have been a complaint entailing consequences of suspension of the licence to practice for two years as imposed on petitioner.
The Court held that considering the rights guaranteed under Articles 14, 19(1)(g) and 21of the Constitution, petitioner was entitled to interim reliefs. Thus, the Court passed the following order:
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Pending final disposal of the petition the impugned order dated 14-04-2024 passed by BCI shall remain stayed.
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Petitioner was entitled to practice as an advocate, duly enrolled on the rolls of the BCMG.
[An Advocate v. Bar Council of Maharashtra and Goa, Writ Petition No. 16417 of 2024, decided on 22-01-2025]
Advocates who appeared in this case :
For the Petitioner: Santosh Paul, Senior Advocate i/b An Advocate in person for Petitioner.
For the Respondents: Yogendra Rajgor for Respondent 1; Shekhar Jagtap a/w Sairuchita Choudhary for Respondent 2; P.J. Gavhane, APP for Respondent 10-State.
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