CASE NO.: Appeal (civil) 6304 of 1998 PETITIONER: BHUPINDER KUMAR SHARMA Vs. RESPONDENT: BAR ASSOCIATION PATHANKOT DATE OF JUDGMENT: 31/10/2001 BENCH: D.P. Mohapatra & Shivaraj V. Patil JUDGMENT:
SHIVARAJ V. PATIL J.
The appellant has filed this appeal, under Section 38 of
The Advocates Act, 1961 (hereinafter referred to as `the Act)
against the judgment and order dated 4.11.1998 passed by the
Disciplinary Committee of the Bar Council of India, confirming
the order passed by the Disciplinary Committee of Bar Council of
Punjab & Haryana removing the name of the appellant from the
States Roll of Advocates under Section 35(3)(d) of the Act.
The appellant was enrolled with the State Bar Council as an
Advocate on 16.9.1994 vide enrolment No. P/771/94. On 9.9.1995,
the respondent-association made a written complaint to the State
Bar Council making allegations of misconduct against the
appellant. The State Bar Council took cognizance of the
complaint and referred the complaint to its Disciplinary
Committee. After the completion of the proceedings in D.C.E. No.
1/1996, order was passed by the Disciplinary Committee of State
Bar Council to remove the name of the appellant from the State
Roll of the Advocates and the same was confirmed by the
Disciplinary Committee of the Bar Council of India, in appeal.
Hence, this appeal.
The learned senior counsel for the appellant strongly
contended that the allegations made in the complaint were not
established or proved, judged by the standard of proof required
in a case like this; the appellant was not actually carrying on
business and the evidence on this point was not properly
appreciated; at any rate, the punishment imposed on the appellant
is grossly disproportionate even assuming that the misconduct was
proved.
Per contra, the learned senior counsel for the respondent
made submissions supporting the impugned order. He drew our
attention to the evidence brought on record to show how the
findings recorded against the appellant are justified. He also
strongly contended that the misconduct of the appellant before
and even after filing of the appeals before the Bar Council of
India and this Court in continuing the business cannot be
condoned; further in spite of giving undertaking before this
Court, he is still continuing his business as is supported by the
report of the Sub-judge made to this Court. According to him,
the punishment imposed on the appellant is proper in the absence
of any good ground to take any lenient view.
We have carefully considered these submissions.
The complaint contained allegations of misconduct against
the appellant for the period prior to the date of enrolment as an
Advocate and also subsequent to his enrolment. Since the
Disciplinary Committee of the State Bar Council did not go into
the allegations of misconduct pertaining to the period prior to
the date of enrolment, it is unnecessary to refer to them.
According to the complainant, the appellant was guilty of
professional misconduct as he was carrying on and continued his
business and business activities even after his enrolment as an
Advocate, stating thus:-
(i) He was running a photocopier documentation center in the
court compound, Pathankot, and the space for the same was
allotted to the appellant in his personal capacity on
account of his being handicap;
(ii) He was running a PCO/STD booth which was allotted in his
name from the P&T Department under handicap quota;
(iii)He was proprietor/General Manager of the Punjab Coal
Briquettes, Pathankot, a private concern and he was
pursuing the business/his interest in the said business
even on the date when his statement was recorded by the
Disciplinary Committee on 12.5.1996.
The defence of the appellant was that although he was
running business prior to his enrolment, he did not continue the
same after his enrolment as an Advocate and he ceased to have any
business interest, and that it is his father and brother who were
carrying on the business after he became an Advocate under some
oral arrangement. The Disciplinary Committee of the State Bar
Council, after considering the evidence placed on record both
oral and documentary, recorded a finding that the appellant was
guilty of professional misconduct in carrying on business in the
aforementioned concerns even after his enrolment as an Advocate
and passed order to remove his name from the States Roll of
Advocates under Section 35(3)(d) of the Act and debarred him from
practising as an Advocate. The Disciplinary Committee of the Bar
Council of India, in the appeal filed by the appellant on re-
appreciation of the material on record, concurred with the
finding recorded by the Disciplinary Committee of the State Bar
Council and held that the appellant was guilty of professional
misconduct and that the punishment imposed on him debarring the
appellant from practising for all time was just. Hence,
dismissed the appeal.
In the impugned order, it is also noticed that the
appellant submitted his application form for enrolment. Column
No. 12 of the application form reads:-
12. Whether or not applicant engaged or
has ever been engaged in any trade, business or
profession, if so the nature of such trade,
business/profession and the place where it is
or was carried on. The answer submitted by
appellant advocate is as under:
No, not applicable.
According to the Disciplinary Committee of Bar council of
India, the appellant had not only procured enrolment by
submitting the false declaration but also suppressed the material
fact; otherwise the appellant would not have been enrolled at
all. In the said order, it is further stated that as a matter of
fact, besides it being the case of misconduct, it is also a case
where the name of the appellant could be removed for suppressing
the material fact; anyhow since the reference had not been made
for the same, it is left open to the State Bar Council to take
such action under Section 26 of the Act.
CW-1, Shri Manohar Lal, Senior Telecommunication Office
Assistant, has deposed that STD/PCO has been allotted to
appellant on 6.4.1992 in the handicap quota and the same is
continuing in the name of the appellant as per the record even
after his enrolment as an Advocate; no intimation was given by
the appellant to the Department to transfer STD/PCO in the name
of his brother Satish Mohan. CW-3, Shri Vipin Tripathi, a clerk
in the office of S.D.O. in his evidence has stated that space for
kiosk for installation of photocopy machine on payment of Rs.
120/- per month, was allotted on lease basis on 6.5.1991 by Dy.
Commissioner, Gurdaspur, to the appellant in handicap quota;
there was no intimation to change lease in favour of anybody and
there is no transfer of lease in favour of any other person; the
lease amount is paid even after appellants enrolment as an
Advocate in his name. CW-3, H.S. Pathania, in his evidence has
supported the allegations made in the complaint. The appellant
in his evidence has stated that he has no concern with the
business of STD/PCO and Photostat machine. RW-2, Satish Mohan,
the brother of the appellant has stated that he has no
arrangement with the appellant regarding PCO. In his cross-
examination he has admitted that he is still in the service of
sugar mills, Dasuya. Hence, it was rightly concluded that
STD/PCO business is being run by the appellant himself even after
becoming an Advocate. RW-3, Shri Puran Chand Sharma, the father
of the appellant in his evidence has admitted that the appellant
is having his office in the same cabin where photocopier machine
is installed. In the evidence led on behalf of the complainant,
it is stated that the site of kiosk for running the photostat
business is still in the name of the appellant and lease money is
also being paid by the appellant and in the absence of the
appellant giving intimation to the Department/authorities
concerned regarding handing over of business to Shri Puran Chand
Sharma or Satish Mohan, the assertion regarding the oral
agreement was not believed by the Disciplinary Committee of the
State Bar Council and rightly so in our opinion. The
Disciplinary Committee of the State Bar Council in its order has
objectively considered the evidence brought on record. As
already stated above, the Disciplinary Committee of the Bar
Council of India on re-appreciation of the evidence has concurred
with the findings recorded by the Disciplinary Committee of the
State Bar Council based on oral and documentary evidence.
Having perused both the orders and the evidence placed on
record, we are of the view that the finding recorded holding the
appellant guilty of professional misconduct is supported by and
based on cogent and convincing evidence even judged by the
standard required to establish misconduct as required to prove a
charge in a quasi criminal case beyond reasonable doubt. We do
not find any merit in the argument that the misconduct alleged
against the appellant was not properly proved by the standard
required to prove such a misconduct. There is also no merit in
the contention that the evidence was not properly appreciated by
both the Disciplinary Committees; nothing was brought on record
to discredit the evidence led on behalf of the complainant and no
material was placed to support the allegation of the appellant
that the members of the respondent-Association had any grudge or
ill-will against the appellant.
It is to be further noticed that this Court on 26.2.1999
passed the following order:-
Learned counsel for the appellant wants to
file an affidavit in the form of an undertaking
that the petitioner is not personally engaging
himself in any of the family businesses.
Adjourned for two weeks.
Pursuant to the said order, the appellant has filed
affidavit/undertaking. Para 3 of the affidavit/ undertaking
reads:-
I state on oath before this Honble Court that
since the day of my enrolment as an Advocate, I
have not engaged myself in any business except
my practice of law as an Advocate and I
undertake before this Honble Court that I
shall not ever engage either actively or
otherwise, in any other business or profession
while I continue my enrolment as an Advocate.
The order made by this Court on 2.9.1999 reads:-
Mr. Sudhir Walia, learned counsel appearing
for the Bar Association, Pathankot placed
before us the photographs of the cabin where
the photocopying machine is installed. The
photograph discloses the name board of the
petitioner and also an inscription in Punjabi
language Bhupindra Photostat Centre. The
learned counsel appearing for the Bar
Association, Pathankot says that these
photographs placed before us have been taken
yesterday only. It is contended that,
therefore, the undertaking filed in this Court
that the petitioner was not conducting any
business in his name, could not be accepted.
This fact is disputed by learned senior counsel
appearing for the petitioner.
We are, therefore, constrained to call for a
report from the learned Sub-Judge at Pathankot
as to whether the cabin in which the
photocopying machine is installed contains,
apart from the name board of the petitioner an
inscription Bhupindra Photostat Centre and
whether such inscription was there till
yesterday and is continuing as of today. The
learned Sub-Judge shall also furnish the
details regarding the allotment of the place
within the Court compound wherein this cabin
has been put up. The report will be submitted
within four weeks from today. A copy of this
order will be sent to the learned Sub-Judge at
Pathankot today itself.
List the matter after the report from the
learned Sub-Judge at Pathankot is received.
Pursuant to the same, the Sub-judge submitted a report,
which also goes against the appellant.
We are unable to say that the concurrent finding recorded
by both the Disciplinary Committees against the appellant as to
his professional misconduct, is a finding based on no evidence or
is based on mere conjuncture and unwarranted inference. Hence,
the same cannot be disturbed.
What remains to be seen is whether the punishment imposed
on the appellant is grossly disproportionate. Having regard to
the nature of misconduct and taking note of the handicap of the
appellant, in our opinion, debarring him from practising for all
time is too harsh. We consider it just and appropriate to modify
the punishment to debar the appellant from practising upto end of
December, 2006. Except the modification of punishment as stated
above, the impugned order remains undisturbed in all other
respects. The appeal is disposed of in the above terms. No
costs.
…………………..J.
[D.P. Mohapatra]
…………………..J.
[Shivaraj V. Patil]
October 31, 2001.
