0704 10 Professional
Ethics Case: D Saibaba Vs. Bar Council of India
PETITIONER:
D
Saibaba
RESPONDENT: Bar Council of
India
BENCH: Bench: R.C. Lahoti, Ashok Bhan.
CITATION: Writ Petition (civil) 528 of 2002
LAWS INVOLVED : Advocates Act 1961
FACTS:
The
appellant, a disabled person, whose marriage had also unfortunately broken up ,
was eager to pursue his career as a lawyer and was still a trainee when the
series of events which form the subject of this case took place.
Smt. D. Anuradha, Respondent No. 1 in Civil
Appeal Appellant D. Saibaba's wife. The marriage broke up and the spouses
separated. On August 25, 1999, the wife filed a complaint of professional
misconduct by the appellant under Section 35 of the Act , alleging that despite
being a duly enrolled advocate , he was operating a telephone booth allotted to
him as a disabled person.
After
hearing the appellant's response , the State Bar Council of India , vide its
order dated November 09, 1999 , held
that no case was made out to proceed against the appellant and directed the
dismissal of the complaint. On December 30, 1999 , the wife filed another complaint and gave
almost the same response.
The appellant filed a detailed reply.
He submitted that the complaint was malicious , of a disgruntled wife who had
also filed a criminal case against him and was out to harass the appellant.
The appellant's defense was that he is
disabled. Due to the pressure of family situation along with financial constraints,
he applied for license for STD booth under disabled quota , considering the
quality of prayer.
The petitioner has filed this petition
to review the order of the Bar Council of India.
In response to the appellants the
State Bar Council of India by its order dated 06 Nov 1999, directed the
withdrawal of the complaint, and opined that no case was made out to proceed
against the appellant. On 30 Dec 1999, the wife filed another complaint. Almost
identical points.
The appellant filed a detailed reply.
He submitted that the complaint was malicious, that it belonged to the
aggrieved wife who had also filed a criminal case against him and that it was
out to harass the appellant. The appellant's defense was that he is disabled.
Due to the pressure of family situation along with financial constraints, he
applied for STD booth license for him under disabled persons quota, which was
granted on the merits of his prayer. He ran the STD booth
JUDGEMENT:
By
order dated 20 Feb 2001, the Bar Council of India directed the appellant to
surrender the STD booth thereby ending the controversy relating to the conduct
of the appellant's counsel. The appellant sought some time to surrender the
license as some dues were to be recovered from the telephone booth customers
which would be difficult to do in case of sudden closure of the business.
As
the appellant failed to surrender the STD booth, the Bar Council of India
passed an order dated 31 March 2001 advising the State Bar. Council to strike
off the appellant's name from the roll of advocates. On 26 April 2001, the
appellant surrendered the booth. The appellant sought a review of the order of
the Bar Council of India based on the subsequent occurrence of the telephone
booth. By order dated 26 Aug 2001, the Bar Council of India dismissed the
review petition on the same ground. The appellant has filed an appeal by
special leave against the order dated 26th Aug 2001. By the order dated 31 Mar 2001
the appellant has filed a statutory appeal under Section 38 of the Advocates
Act , 1961 and has also appealed by way
of special leave.
Considering
Section 48AA and Sections 37 and 38 of the Advocates Act, 1961, the opinion
formed by the Bar Council is that the appointment of different phrases by the
Parliament in Sections 37 and 38 and Section 48AA indicates the legislative
intention that limitation for appeal is to be reckoned from the date of
communication of the order under Section 37 or 38, Section 48AAThe limitation
period for internal review begins on the date of the order sought for review,
not the date of communication of the order. The revision petition was dismissed
as barred by limitation without going into merits. During the pendency of these
appeals the appellant filed an original petition challenging the constitutional
validity of Section 48AA on the ground that the provision (as decided by the
Bar Council of India) is inoperative and therefore liable to be struck down.
Appeals and civil writ petitions were held for hearing alike
At the hearing of the point appeals ,
it was urged that whether the Bar Council of India had committed an arithmetical
error in computing the period of limitation and therefore it was doubtful
whether the revision petition could be barred by time.
The appellant, a disabled person,
whose marriage had also unfortunately broken up , was eager to pursue his
career as a lawyer and was still a trainee when the series of events which are
the subject of this case took place. We have no reason to form any opinion
other than that the Bar Council, had it exercised its revisional jurisdiction ,
would not have formed any opinion other than to condone the innocuous mistake
of the appellant in allowing the allotment of STD booth. They themselves Continued
STD in their name even if the booth is discontinued. The Bar Council would
certainly have thought sympathetically and would not have deprived the
appellant of his source of livelihood and would not have deprived the
apprentice of the opportunity to blossom as an independent advocate. All the
appeals filed by the appellant deserve to be allowed and are accordingly
allowed.
The
impugned orders of the Bar Council are set aside. Appellant's registration as
an advocate will be restored.
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