Jetha Nand versus the Honble Judges of the Punjab High Court

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961

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(1) S.C.R. SUPREME OOURT REPORTS

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in the order for examination and/or for the production of the documents. Manifestly, the order oould be obtained on a petition which was required to be verified by the official liquidator and there had to be a formal hearing and only if a prima facie case for hearing had been made out the order could be made. U11der the Companies (Court) Rules a different praetice, which approaches the practice prevailing in the English Courts baa been set up. The mere fact that under r. 195 of the Calcutta High Court Rules under Act of 1913 the appellaut might have had a right of access to the statement on which the order was founded will not be an adequate ground for holding that the earlier practice must continue to prevail. If the appellant is not entitled to inspection of the statement he would certainly, for the si;tme reason, not be entitled to a copy of that statement.

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JHI.

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Satish Churan law v. H. K. Gang11fy

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Shah J.

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On the view taken, this appeal must fa.ii and is dismia8ed with cOBts.

Appwl dismissed.

1P61 Dtcnntn 6 .

JETHA NAND

v.

THE BON'BLE JUDGES OF 'l'HE PUN.JAB IDGH COURT

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(P. B. GAJENDRA.GADKAR, A. K. SARUR, K.N. WANCHOO, K.C. DAB GUI'TA and N. RAJAGCPA.LA AYYANGAR, JJ.)

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AdlJOCIJU on tke R"ll of Bind High Oourt-Sind cta.ie& to form part of India--If right w pra-Otiee in court. of India continue-India (Adaptation of Existing Indian Law•) Order, 1947, •· 5--Phe Indian Bar 0ouMil8 Act, 1926 [38 of 1926], •· 14.

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The appellant J who was enrolled as an advocate in the Chief Court of Sind in May 1947 came to India at the end of the year 1948 and practiced in the Courts at Delhi. The Chief Justice of Punjab High Cour~ prohibited the ap~ellant from practiciny u an advocate m the Courts of Delhi. At

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.,..-

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962 SUPREME COURT REPORTS [1962J SUPP.

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1961

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Jetha Nand

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y. Tk Hon' hie Judges of the Pun.jab High Court

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the time the appellant was enrolled he was an advocate for the purposes of the Indian Bar Councils Act, 1926, and so was entitled as of right to practice in any mbordinate courts in what then was British India.

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The question was whether this right continued to exist· aftrr Sind ceased to form a part of India.

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Hel.d, that the Chief Court of Sind which was a High Court for the purposes of Indian Bar Councils Act. 1926, upto August 14, 1947, cea•ed to exist as a High Court for the purposes of the Indiaµ Bar Councils Act, with effect from August 15, 1947, bv virtue ofs. 5 of the India (Adaptation of Existing Indian Law) Order, 1947. The necessary conse. quence of this was that the Roll maintained by the Chief Court of Sind was from August 15, 1947, no longer a roll maintained by a High Court within the meaning of the Indian Bar Councils Act, 1926, and any person whose name was entered on the Roll of the Chief Court of Sind ceased to be an advocate for the purposes of s. 14 of the Indian Bar Councils Act, 1926, and therefore ceased to have the right under that section to practice in courts of India.

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In the present case even though the appe!lant had a right on August 14, 1947, to practice in the courts subordinllte to any High Court in India, such a right ceased to exist after the India (Adaptation of Existing Indian Laws) Order, 1947.

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C:rvrL APPELLATE JURISDICTION: Civil Appeal No. 490 of 1860.

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Appeal bv special leave from the judgment and order dated October 6, 1958, of the Puniab High Court in Civil Misc. No. 28of1958(File 'A').

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Mohan Behari Lal, for the appellant.

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N. 8. Bindra and P. D. Menon, for the respondent No. 1.

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Radhe:y Lal Agarwal and V. N. 8dhi, for respon· dent No. 2.

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December 5. The Judgment of the Court was delivered by

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DasJ.

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DAS GUPTA, J.-The appellant, Jetha Nand (Betab) was enrolled as an Advocate in the Chief Court of Sind on Mav 14, 1947. He came awav to India at the end of the year 1948 and practised in the courts at Delhi. On October 8, 1956 an order

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was passed by the Chief Justice of the Punjab High Court prohibiting the appellant from practising as an

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'-• {l) S.C.R. SUPREME OOURT REPORTS

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963

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Advocate in the courts at Delhi. On November 8, 1956 thA appellant presented an application to the High Court in which he contended that by virtue of his having been enrolled as an Advocate in the Chief Court of Sind he was entitled to practice.in all the subordinate courts within the territory of India. This petition was however rejected by a Full Bench of the Punjab High Court on the view • that the appellant could not after the partition of India be considered to be an Advocate enrolled under the provisions of the Bar Councils Act. Against this order the present appeal has been preferred on special leave granted by this Court.

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19111

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J1thaNand '(, Tht Hon'b/1 Jur/111 of th• Punjab High Oourt DasJ.

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The petitioner's case is that as imme{iately before the partition of India he was Antitled to ' practise in any court in British India his right to • practise in those Courts continued to exist even when on partition of India, "British India" ceased to exist .and provinces of India took their place ; and when thereafter on the formation of the Indian Union under the Constitution these provinces became States of India but those same courts continued, his right to practise in those courta al~o • continued.

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On behalf of the respondents it is contended that the petitioner's right to practise in courts which were not under the Chief Court of Sind ceased as soon as Sind ceased to form part of India and the Chief Court of Sind ceased to be a High Court in India.

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As the appellant bases his claim on e. 14 (1) (b) of the Indian Bar Councils Act, it is necessary to examine first the scheme of that Act. This Act was passed to provide for the constitution and incorporation of Bar Councils for certain courts in British India, to confer powers and impose duties on such Ear Councils and to amend the law relating to legal practitioners entitled to practise in the courts. It extended to the whole of British

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1961

J 11/aa Nand

v. rhe Ho-i •bl• Judges oftli• Punja& e;11a Crurt

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DasJ.

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~_;·

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964 SUPREME COURT REPORTS (1962] SUPP.

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India but was in the first instance made applicable to only certain named High Courts -the High Court at Calcuttn, and the High Courts at Madras, Bombay, Allahabad, Patna and Rangoon. It was also provided (s. I, sub-s.2) that the Act shall apply to such other High Court• within the meaning of ol. 24 of s. 3 of the General Clauses Act, 1897 ao the Governor-General in Council may, by notification in the Gazette declare to be • High Courts to which this Act applies. Sections 2, 17, 18 and 19 were to come into force at once ; but as regards the other provisions it was enacted that they would come into force in respect of any High Court to which the Act applied on such date as the Governor-General in Council might by notification direct. Section 2 defined Advocate as "an advocate" entered in the roll of • advocates of a High Court under the provisions of this Act and "High Court" as "a High Court to which this Act applies". Sections 3, 4 and 5 deal with the constitution and incorporation of Bar Councils. Section 8 makes it the duty of every High Court to prepare and maintain a roll of advocates of the High Court and also provides that no person • shall be entitled as of right to practise in any High Court unless his name is entered in the roll of the advocates of the High Court. Section IO empowers the High Court to reprimand, suspend or remove from practice any advocate of the High Court whom it finds guilty of professional and other misconduct. The manner in which such action can be taken is dealt with in es. 10, 11, 12 and 13. Of these, s. 12 .. provides inter alia that when any advocate is reprimand< d or suspended under this Act a record of the punishment shall be entered against his name in the roll of the Advocates of the High Court and when an Advocate is removed from Practice his name shall forthwith be struck of the roll. Section 14 provides inter alia that an advocate shall be entitled as of right to practise in any other Court in British India..

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,·

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965

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(I) S.C.R. SUPREME OOURT REPORTS

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•

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It is not disputed before us that the GovernorGeneral by notification in the Gazette of India did declare the Chief Court of Sind to be a High Court to which this Act applied and that by another notification he also directed that all the provisions of the Act would come into force in respect of the Chief Court of Sind on s :me date long before 1947. Consequently, even though these notifications have not been placed before us we must proceed on the • bases that on May 14, 1947, when the appellant was enrolled as an advocate in the Chief Court of Sind he was an advocate for the purposes of the Indian Bar Councils Act and so was entitled as of right to practise in any subordinate court3 in what then was British India. The question is whether this right continued to exist after Sind ceased to form a part of India. It appears to us clear that • whens. 2 defines advocate as "an advocate entered in the roll of advocates of High Court'', it mean• an advocate who hai been entered in such roll of advocates and whose name continues to be on that roll. When, for example, the name of the advocate is removed from the roll under s. 12 (7) he ceases to be an advocate within the meaning of • s. 14 inspite of the fact that his name was once entered in that roll. An advocate entered in the roll of advocates can therefore m(lan only one whose name continues to be entered in that roll. What is the position if the High Court ceases to exist, by reason of abolition or otherwise ? The only possible answer to this question is that if the High Court ceases to exist ; the roll which used to be maintained by it has also no legal existence and consequently a person whose name was in that roll, is no longer an advocate within the meaning of s.14 or any other section of the Act.

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lHl .1t1i.. Ndl Y, 77w Ho•'614 JrJ1e. •J 1/N Pajd Hith C-1 D•sJ.

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That appears to be exactly the position in the present case. The Chief Court of Sind was a High Court within the meaning of ss. 3 to 19 of the Indian Bar Councils Act by reason of the notifie&· tion made by the Governor-General in Council § der s. 1 sub-s. 2 of th~ Act. It would be absurd

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966 SUPREME COURT REPORTS [1962] SUPP.

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1061

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1061 to think that when Sind ceased to form part of Jelha Nand India the Chief Court of Sind still continued to be .. a High Court for the purposes of Indian law. All 1 J,, Hon' bl1 Judges doubts in the matter have however been set at rest of lhe Punjab Hizh Court by the provisions of the India (Adaptation of Exis- Da·sJ. ting Indian Laws) Order, 1947. In this connection it is necessary to recall s. 18 sub-s. 3 of the Indian Independence Act which provides th11t the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by Jaws of the Legislature of the Dominion in question or by any other legislature or other authority having power in that behalf. Many adaptations were in fact found necessary to remove complications and confusions which might otherwise have arisen. Of the several adaptation orders made we are concerned here with the Adaptation Order No.16 which was called the India (Adaptation of Existing Indian laws) Order, 1947. In this Order, the appointed dated was defined as August 15, 1947. l:lection 5 of the Order is in these words :-

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"Any reference in an existing Indian law to a High Court which as from the appointed day ceases to be a High Court for any part of the Dominion of India, shall

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(a) if the reference be to the High Court of Judicature at Lahore, be replaced by a reference to the High Court of East Punjab, and

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( b) in any other case, be omitted."

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The Chief Court of Sind (a High Court within the meaning of the General Clauses Act) having ceased as from August 15, 1947 to be a High Court for any part of the Dominion of India references to that Court as one to which the Act applied must be omitted in the application of the Indian Bar

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~' (1) S.C.R. SUPREME COURT REPORTS

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967

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Councils Act, 1926 after that date. In other words, the Chief Court of Sind which was a High Court for the purposes of the Indian Bar Councils Act, 1926 up to the August 14, 1947 ceased to ex:ist as a High Court for the purposes of the Indian Bar Councils Act with effect from the 15th day of August, 1947. The necessary consequence of this is that the roll maintained by the Chief Court/ of Sind was from August 15, 1947 no longer a roll maintained by a • High Court within the meaning of the Indian Bar Councils Act and thus-any person whose name was entered on the roll of the Chief Court of Sind ceased to be an advocate for tll.e purpose of s. 14 of the Indian Bar Councils Act, 1926 and therefore ceased to have the right under that section to practise in courts in India..

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1961

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Jetha .Vand v. The Hon' bit Judges of tlu Punjab Hi:h Oourl

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Dos J,

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There can be no doubt whatsoever that in making this adaptation ins. 5 of the India (Adaptation of Ex:isting Indian Laws) Order, 1947 the intention of the authority making the order was not only to ensure that rights will not in future accrue on the basis of a High Court now in Pakistan having been formerly a High Court in India • but also to prevent the future exercise of any right that ma.y have become vested in any person on such a High Court having been a High Court in India. This conclusion is inevitable from the absence of any saving clause in the Adaptation Order. Thus, even though the appellant had a right on the 14th August, 1947 to practise in the courts subordinate to any High Court in India such ..... a right ceased to exist after the Adaptation Order mentioned above. .

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We need merely add that if the appellant's contention was correct, the anomolous position would have a.risen that there would be no court in India which could take disciplinary action against him, in the event of misconduct. The scheme of the Bar Councils Act is as has been emphasised

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968 SUPREME COURT REPORTS (1962] SUPP. ,,...

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1151 earlier, that each High Court in the country should J,lha Naad have disciplinary jurisdiction over the Advocates

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v. on its rolls. 'fhe provisions of the Adaptation Tb. Hon' bit Jud11s of the PURjab order have maintained this position. Hith Co111I

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In our opinion, the High Court rightly reject- DasJ. ed the appellant's applicatiou. The appeal is acoor· dingly dismissed.

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In the circumstances of the case we make no • order as to costs. But the appellant who has filed the appeal as a pauper is directed to pay the court-fees which would have been paid by him if he had not been permitted to appeal as a pauper.

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Appeal dismissed.

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1961 Dec,,,,ber f.

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A. N. D' SILVA "· UNION OF INDIA

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(K. N. WANCHOO and J.C. SHAH, JJ.)

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• Government S.rvant-Disciplinary proceedings-Punishment-Proposal by enquiry officer, if binding on the punishing authority-Powers of President-Union Publio Service Oommi&sion-Whether an appelliite authority over E"'IJUiry OfficerAdvice, if binding on Preaident-Oomtitution of India, Art.. 811, 320:

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D, a Divisional Engineer of Po•ts and Telegraphs was suspended from service for irre~ularities in the matter of allotment of telephones. The charges were firstly, that irregularities were committed by him with a view to secure illegal gratification for himself and others and secondly, that he was a party to the commission of irregularities having thereby facilitated acceptance of illegal gratification by his subordinates. The enquiry officer found him guilty of misdemeanour by disobeying orders expressly issued. The report of the Enquiry Officer was sent by the President to the Union Public Service Commission for their recommendations. In the meantime D was informed that the Government of India tiad dec\ped tp di•idss him subject to the advice of the Unio11

Jetha Nand v. the Honble Judges of the Punjab High Court

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Jetha Nand v. the Honble Judges of the Punjab High Court

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