Partly allowed

Sakina Sultanali Sunesara (Momin) v. Rekhaben J. Vania

Gujarat HC16 Oct 2019SCA/7789/2019

Case brief

AI extract

What is this about?

Petitioner challenged disciplinary committee orders directing cross-examination without forming required opinion under Bar Council Rules. High Court quashed orders mandating cross-examination absent specific justification, citing statutory procedure over natural justice presumptions, remanding for fresh order.

What did the court decide?

Impugned orders dated 20th Jan, 31st Mar, and 13th Apr 2019 quashed and set aside; matter remanded to Bar Council of Gujarat to form opinion on need for cross-examination and pass fresh order.

Sakina Sultanali Sunesara (Momin) Vs… — Contract and Commercial Disputes | Gujarat HC (2019)

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C/SCA/7789/2019 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7789 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 7790 of 2019

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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SAKINA SULTANALI SUNESARA (MOMIN)

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Versus

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REKHABEN J. VANIA

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Appearance:

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MR AS VAKIL(962) for the Petitioner(s) No. 1 MR.AMIT R JOSHI(6682) for the Respondent(s) No. 1 MR RC JANI for the Respondent(s) No. 2

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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 16/10/2019

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ORAL JUDGMENT

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1.Rule returnable forthwith. Learned advocate

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Mr. R.C. Jani waives service of notice of

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rule on behalf of respondent no.2. Learned advocate Mr. Amit Joshi waives service of notice of rule on behalf of respondent no. 1.

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2.Having regard to the controversy arising in this petition in a narrow compass with the consent of the learned advocate for the parties, the matter is taken up for hearing.

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3.Since these petitions are arising out of the common issue and the facts are similar, the same were heard analogously and are being disposed of by this common order. For the sake of convenience, the Special Civil Application No.7789 of 2019 is treated as a lead matter.

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By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged orders dated 20^th January, 2019, 31^st March, 2019 and 13^th April, 2019 passed by the Disciplinary Committee No.1 of the Bar Council of Gujarat in complaint filed by respondent no.1 against one Ms. Rekhaben J. Vania in Special Civil Application No.7789/2019 and against Mr. Pankajkumar Bachubhai Velani in Special Civil Application No.7790/2019, both practicing advocates.

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5.The petitioner is owner of various parcels of land situated at Taluka Siddhpur, District Patan which became subject matter of various litigations filed by different parties against the petitioner and others.

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6.The petitioner filed Complaint No.15/2018 against Ms. Rekhaben J. Vania who is respondent no.1 in Special Civil Application No.7789/2019 and Complaint No. 16/2018 against Mr. Pankajkumar Bachubhai Velani who is respondent no.1 in Special Civil Application No.7790/2019 alleging professional misconduct by both the advocates as a result of which the petitioner and others have suffered irreparable loss and harm.

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Respondent no.2 - Bar Council of Gujarat on receipt of the complaint from the petitioner referred the matter to the Disciplinary Committee No.1 under section 35 of Advocates Act, 1961. A letter dated 3^rd January, 2019 was addressed to the petitioner intimating that the hearing of the meeting of the Disciplinary Committee No.1 was fixed on 20^th January, 2019 and it was mentioned that it would be open for the parties to examine the witnesses that may be permitted before the

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Disciplinary Committee.

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It is the case of the petitioner that the petitioner is aggrieved for violation of Rule 8(1) contained in Part-VII, Chapter-I-A of the Bar Council of India Rules,1975 ( for short “the Rules”) which provides that the Disciplinary Committee would determine the disciplinary case on documents and affidavits, unless it is of the opinion that it should be in the interest of justice to permit cross examination of the deponent or to take oral evidence. However, according to the petitioner without forming an opinion, the Disciplinary Committee straightaway by order dated 20^th January, 2019 adjourned the case for the evidence of the petitioner and directed the petitioner to submit her evidence.

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It appears that thereafter the Bar Council passed an order dated 31^st March, 2019 as under:

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“5. Committee heard oral arguments of both the parties at length on the said application. Committee is of the view that looking to the principles of natural justice and various provisions of Bar Council of India Rules and Bar Council of Gujarat Rules this application is not tenable in the eye of law.

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Moreover, upon considering the application of the complainant dated 17/03/2019 for seeking permission not to file affidavit as Examination-in-chief on the ground that the complainant is an old lady around 65 years will have to be considered in light of Rule 8 along with section 42 which empowers the Committee for summoning and enforcing the attendance of any person and examining him on oath and also keeping in mind the principles of natural justice inasmuch as it is a settled law that denial of an opportunity to cross examine a witness to the accused would be a serious violation of principles of natural justice and therefore, also allowing such application shall cause serious prejudice as aforementioned as it would be a denial of opportunity to cross examine the witness and or proving the documents and therefore, also the present application deserves to be rejected.

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It is ordered to reject this application of complainant’s advocate. After rejecting this application, Committee has given direction to the complainant’s advocate who is present before the Committee to produce evidence of complainant as early as possible.”

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10.Thereafter the matter was adjourned to 13^th April, 2019 and following order is passed by respondent no.2 on 13^th April, 2019 :

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“Today, the matter is fixed for evidence of complainant either oral or by way of on affidavit. Inspite of that today, Advocate for the complainant moved an application on behalf of complainant,

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through senior advocate Mr. Apurva Vakil, Advocate seeking adjournment. It is stated in the application that they need short time to take necessary instruction from their client against the order passed by this Committee on 31/03/2019. Looking to the record, certified copy of the order dated 31/03/2019 was supplied to the advocate for the complainant on 01/04/2019, enough time was given to complainant side, still they asking time. It is pertinent to note that this matter was adjourned since last 2 to 3 adjournment on the stage of producing evidence of complainant and the matter is held up for further proceeding. Committee has requested to concern lawyer of the complainant on the last date also to produce the evidence as early as possible and the same thing was delivered in order dated 31/03/2019 passed by this Committee on the application of complainant dated 17/03/2019 and this application is nothing but waste of time.

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Looking the above circumstances, in the interest of justice, this last opportunity is given to the complainant side to produce their evidence or do the needful as per law and for that to grant this application with cost of Rs. 2500/in the Gujarat Advocates Welfare Fund account, BCG. Complainant is directed by the Committee to pay the cost on or before next date of hearing in the BCG office.”

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11.Learned advocate Mr. A.S. Vakil for the petitioner submitted that the order dated 20^th January, 2019 is contrary to the

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provisions of Rule 8(1) of Part VII, ChapterI-A of the Rules as the Disciplinary Committee did not form an opinion for taking oral evidence by way of cross examination of the petitioner.

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11.1) Learned advocate for the petitioner also referred to section 36B(1) of the Advocates Act, 1961(for short “the Act”) which provides that the State Bar Council shall dispose of the complaint received by it under section 35 of the Act expeditiously and shall conclude the same within one year from the date of receipt of the complaint and section 42 Of the Act which describes the powers of the Disciplinary committee, whereas section 49(1)(f) of the Act provides for general powers of the Bar Council of India to make rules and accordingly Rule 8(1), Rule 11(1) and Rule 11(3) of Part VII, Chapter-IA of the Rules were relied upon for the submission that deciding the complaint on documents and affidavits is the general rule and permitting cross examination of deponents or taking oral evidence is only when the Disciplinary Committee is of the opinion that it is in the interest of justice to permit to do so.

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11.2) Learned advocate Mr. Vakil would submit that the complaint filed by the petitioner is fully capable of being decided on documents and affidavits annexed with the complaint as respondent no.1 being advocate of every party who initiated the litigation against the petitioner has committed breach of various provisions of the Act resulting into misconduct. It was submitted that the observations made in paragraph nos. 2 and 3 of the order dated 17^th March, 2019 are contrary to the Rules and consideration of principles of natural justice cannot be the determinative factor to decide if the complaint can be decided on documents and affidavits produced before the Disciplinary Committee. It was pointed out that respondent no.2 did not specify how various provisions of the Rules read with Bar Council of Gujarat Rules are not applicable in facts of the case.

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11.3) Mr. Vakil relied upon the decision of the Supreme Court in case of Union of India and another v. Delhi High Court Bar Association and others reported in (2002) 4 Supreme Court cases 275 to submit that the procedures prescribed under the Rules are required to be followed. While interpreting

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section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 as amended in 2000 with regard to procedure and powers of the Tribunal and the Appellate Tribunal in context of section 22 of the said Act, the Supreme Court has held as under :

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“23. In other words, the Tribunal has the power to require any particular fact to be proved by affidavit, or it may order the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to Rule 12(6) would certainly apply only where the Tribunal chooses to issue a direction, on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or defendant for the production of a witness for crossexamination. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to the Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present for cross-examination and in the event of his not appearing, then the affidavit shall not be taken into evidence. When the High Courts and the Supreme Court in exercise of their jurisdiction under Article

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226 and Article 32 can decide questions of fact as well as law merely on the basis of documents and affidavits filed before it ordinarily, there should be no reason as to why a Tribunal, likewise, should not be able to decide the case merely on the basis of documents and affidavits before it. It is common knowledge that hardly any transaction with the Bank would be oral and without proper documentation, whether in the form of letters or formal agreements. In such an event the bona fide need for the oral examination of a witness should rarely arise. There has to be a very good reason to hold that affidavits, in such a case, would not be sufficient.

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The manner in which a dispute is to be adjudicated upon is decided by the procedural laws which are enacted from time to time. It is because of the enactment of the Code of Civil Procedure that normally all disputes between the parties of a civil nature would be adjudicated upon by the civil courts. There is no absolute right in anyone to demand that his dispute is to be adjudicated upon only by a civil court. The decision of the Delhi High Court proceeds on the assumption that there is such a right. As we have already observed, it is by reason of the provisions of the Code of Civil Procedure that the civil courts had the right, prior to the enactment of the Debt Recovery Act, to decide the suits for recovery filed by the banks and financial institutions. This forum, namely, that of a civil court, now stands replaced by a banking tribunal in respect of the debts due to the bank. When in the Constitution Articles 323A

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and 323B contemplate establishment of a tribunal and that does not erode the independence of the judiciary, there is no reason to presume that the banking tribunals and the appellate tribunals so constituted would not be independent, or that justice would be denied to the defendants or that the independence of the judiciary would stand eroded.”

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11.4) Mr. Vakil further relied upon the decision of the Supreme Court in case of State of Jammu and Kashmir and others v. Bakshi Gulam Mohammad and another reported in AIR 1967 SC 122 to submit that the right of cross examination cannot be said to be a rule of natural justice. In this context, the Supreme Court has held as under :

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“20. The next point is as to the right of cross-examination. This claim was first based on the rules of natural justice. It was said that these rules require that Bakshi Ghulam Mohammad should have been given a right to crossexamine all those persons who had sworn affidavits supporting the allegations against him. We are not aware of any such rule of natural justice. No authority has been cited in support of it. Our attention was drawn to Meenglas Tea Estates v. Their Workmen, but there all that was said was that when evidence is given viva voce against a person be must have the opportunity to hear it and to put the witnesses questions in crossexamination. That is not our case. Furthermore, in Meenglas Tea Estate case

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the Court was not dealing with a fact finding body as we are. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing. Bakshi Ghulam Mohammad was certainly given that. It was said that the right to the hearing included a right to crossexamine. We are unable to agree that is so. The right must depend upon the circumstances of each case and must also depend on the statute under which the allegations are being inquired into. This Court has held in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam that "the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any preconceived notions, but in the light of the statutory rules and provisions." We have to remember that we are dealing with a statute which permits a Commission of Inquiry to be set up for fact-finding purposes. The report of the Commission has no force proportion vigorous. This aspect of the matter is important in deciding the rules of natural justice reasonably applicable in the proceedings of the Commission of Inquiry under the Act. Then we find that s. 10 to which we have earlier referred, gives a right to be heard but only a restricted right of crossexamination. The latter right is confined only to the witnesses called to depose against the person demanding the right. So the Act did not contemplate a right of hearing to include a right to cross-examine. It will be natural to think that the statute did not intend

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that in other cases a party appearing before the Commission should have any further right of cross- examination. We, therefore, think that no case has been made out by Bakshi Ghulam Mohammad that the rules of natural justice require that lie should have a right to crossexamine all the persons who had sworn affidavits supporting the allegations made against him.”

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11.5) Learned advocate for the petitioner therefore, submitted that respondent no.2 cannot insist for cross examination of the petitioner without forming an opinion as prescribed under the Bar Council of India Rules.

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On the other hand, learned advocate Mr. R.C. Jani relying upon the averments made in the affidavit in reply submitted that the impugned orders are passed by respondent no.2 considering the facts and circumstances of the complaint and based upon the principles of natural justice and there is no perversity in the impugned order so as to entertain the petition under Article 227 of the Constitution of India.

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12.1) Thereafter reference was made to the allegations made in paragraph 3(D) of the petition that respondent no.1 did not make out any case for permitting the cross

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examination. It was submitted by Mr. Jani that it is the right of respondent no.1 to have cross examination of the petitionercomplainant and it is clear that petitioner wants to delay the proceedings to come out of Rule 17 of Part VII, Chapter-I-A of the Rules by seeking adjournments from time to time and not proceeding with the hearing of the complaint and therefore, the cost of Rs.2500/- imposed upon the petitioner is justifiable.

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12.2) Mr. Jani would submit that chronology of events which have taken place after filing of the complaint clearly shows that the petitioner is delaying the proceedings for hearing by the Disciplinary Committee and therefore, the petition should be dismissed only on that ground.

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12.3) Mr. Jani would further submit that it is the usual process of the respondent no.2 to ask for explanation from the concerned advocate before referring the complaint to the Disciplinary Committee and accordingly, the explanation was sought from respondent no.1. It was also submitted that the members of the respondent no.2 Disciplinary Committee are well aware about

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the Rules and provisions of the Act and no application is required seeking permission to cross examine but if the Committee is of the opinion that looking to the facts of the matter, cross examination is required to be performed, the Committee may allow the same even as per the Rules. It was therefore, submitted that the petition is devoid of any merit and is required to be dismissed.

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Having heard the learned advocates for the respective parties and having gone through the materials on record, it would be necessary to refer to relevant provisions of the Advocates Act 1961 and the Bar Council of India Rules so as to decide whether respondent no.2 is required to form an opinion under the same for directing the petitioner to remain present for cross examination or not?

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Sections 35, 49(1)(f) and 49A(1)(f) of the Advocates Act 1961 read thus :

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“35. Punishment of advocates for misconduct.—(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. 1[(1A) The State

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Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]

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(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

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(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the AdvocateGeneral an opportunity of being heard, may make any of the following orders, namely:—

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(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

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(b) reprimand the advocate;

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(d) remove the name of the advocate from the State roll of advocates.

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(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

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(5) Where any notice is issued to the

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Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

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[Explanation.—In this section, 2[section 37 and section 38], the expressions “Advocate-General” and Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.]

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xxx

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General power of the Bar Council of India to make rules.—3[(1)] The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—

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xxx

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(f) the procedure to be followed by the disciplinary committee of a State Bar Council and by its own disciplinary committee;

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xxx

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[49A. Power of Central Government to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act including rules with respect to any matter for which the Bar Council of India or a State Bar Council has power to make rules.

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xxx

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(f) the procedure to be followed by a disciplinary committee of a Bar Council in hearing cases and the procedure to be followed by a disciplinary committee of

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the Bar Council of India in hearing appeals;”

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Rule 8(1) of Part-VII of Chapter-I-A and Rules 11(1) and 11(3) of Bar Council of India rules read as under :

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“8(1)The Disciplinary Committee shall hear the Attorney General of the Additional Solicitor General of India or the Advocate General as the case may be or their Advocate, and parties or their Advocates, if they desire to be heard, and determine the matter on documents and affidavits unless it is of the opinion that it should be in the interest of justice to permit cross examination of the deponents of to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed.”

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Rule 11(1) and Rule 11(3) reads as under:

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(1) If in any enquiry pending before the Disciplinary Committee, the complainant dies and there is no representative who is willing to conduct the case on his behalf the Disciplinary Committee may, having regard to the allegations made (i the complaint and the evidence available. Make a suitable order either to proceed with the enquiry or to drop it.

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Xxx

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(3) No Disciplinary enquiry, shall be dropped solely by reason of its having been withdrawn, settled or otherwise compromised, or that the complainant

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does not want to proceed with the enquiry.

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Rule 40 of Chapter- V of Gujarat Bar council (Constitution and Functions of Committee) Rules 1962 reads as under:

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“40. FUNCTIONS: The Disciplinary Committee shall perform all the functions assigned to it under the Act in accordance with the procedure laid down in the Act and under the Rules made by the Bar Council of India under Section 49(f) of the Act.”

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16.On perusal of the above provisions of the Act and the Rules, it is clear that respondent no.2 has not formed any opinion as required under Rule 8(1) of Part-VII of Chapter-I-A of the Rules. As per the Rules, deciding a complaint on the document and affidavit is a rule while cross examination of the deponent or taking oral evidence is only an exception. The Advocates Act,1961 or the Bar Council of India Rules do not contemplate a right of hearing, much-less a right of hearing to include right to cross examination. In all disciplinary case, a party complainant or

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advocate should have right of cross examination is not contemplated either under the provisions of the Advocates Act or the Bar Council of India Rules.

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It is also an admitted fact that permitting cross examination of the deponent or taking oral evidence is not mandatory as no opinion to that effect is formed by respondent no.2

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18.As respondent no.2 has not complied with the Rules made for the purpose of conducting disciplinary committee proceedings, it would be necessary to quash the impugned orders and remand the matter back to respondent no. 2 for forming an opinion as contemplated under Rule 8(1) of Part-VII of Chapter-I-A of the Rules before insisting upon the cross examination in view of ratio of decision of Supreme Court in case of Jammu and Kashmir and others v. Bakshi Gulam Mohammad and another (supra), wherein it is held that right of cross examination cannot be claimed on the basis of rule of natural justice.

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19.Similarly, the Apex Court in case of Union of India and another v. Delhi High Court Bar Association and others (supra), while

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examining the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 has held that it is by reason of the provisions of the Code of Civil Procedure that the Civil Courts has the right, prior to the enactment of the Debts Recovery Act, to decide the suits for recovery filed by the banks and financial institutions whereas the Tribunal constituted under Articles 323-A and 323-B contemplates establishment of a Tribunal and Court cannot be saddled with same procedure as prescribed under the Code of Civil Procedure.

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Therefore, in the facts of the case when the rule for the purpose of deciding the complaint against an advocate prescribes for formation of an opinion by respondent no.2,then respondent no.2 could not have passed an order for cross examination on the ground of breach of principles of natural justice.

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21.In view of foregoing reasons, the petitions are partly allowed and impugned orders dated 20^th January, 2019, 31^st March, 2019 and 13^th April, 2019 passed in both the matters are hereby quashed and set aside and the matters are remanded back to respondent no.2 to pass

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fresh de-novo order to comply with Rule 8(1) of Part-VII of Chapter-I-A of the Rules by forming an opinion as to whether the cross examination of the complainant is required or not.

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Rule is made absolute to the aforesaid extent with no order as to costs.

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(BHARGAV D. KARIA, J)

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RAGHUNATH R NAIR

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Sakina Sultanali Sunesara (Momin) v. Rekhaben J. Vania

Case brief

What is this about?

What did the court decide?

Sakina Sultanali Sunesara (Momin) v. Rekhaben J. Vania

Case brief

What is this about?

What did the court decide?

What the court decided

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