Pawan Kumar Sharma Vs. Gurdial Singh [1998] INSC 482 (23 September 1998)

S.S. Anand, V.N. Khare

ACT:

HEAD NOTE:

O R D E R

Appellant has called in question the order of the Disciplinary Committee of the Bar Council of India dated 11.4.1998 vide which he was punished by suspension form practice for one year with effect from the date of receipt of a copy of the order. The circumstances which led to the filing of this appeal need a brief notice:

Respondent is the complainant against the appellant - advocate. On 28.8.1991, he filed a complaint alleging that the appellant was doing "taxi business" and had at the relevant time four taxis in his ownership. It was alleged that since the appellant was practising as a Lawyer, he could not have carried on the taxi business without the permission of the Bar Council and since no such permission had been obtained by him, he was guilty of committing professional misconduct. This complaint was filed initially with the State Bar Council but since it could not be disposed of within a period of one year from the date of the complaint, the same was transferred to the Bar Council of India under Section 36-B of the Advocates Act for its disposal. Before the Disciplinary Committee of the Bar Council of India, evidence was led on the issue viz.

"whether respondent has committed the professional misconduct, as mentioned in the complaint?".

The evidence led on behalf of the complainant as well as that of the appellant showsthat the appellant had himself enrolled as an Advocate with the Punjab and Haryana Bar Council in January, 1990. At the time when he so enrolled himself his family was doing taxi business and he himself also owned four taxis. The case of the appellant was that after his enrolment as an Advocate, he transferred all the taxis to different persons and handed over with the taxi business" thereafter. He filed copies of the affidavits by which transfers had been made by him in favour of different persons.

The Disciplinary Courtnee after considering the evidence of the record, to the conclusion that the appellant was guilty or professional misconduct and suspended him from practice for one year.

We ........ ....... counsel for the parties.

Rule 47 of the Bar Council of India Rules reads as follows :

"Rule 47 - An Advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of profession.

Rule 48 reads thus:

"Rule 48 - An Advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinary sitting fee, provided none of his duties are of an executive character, An Advocate shall not be a Managing Director or a Secretary of any company.

A bare perusal of the aforesaid two Rules shows that an Advocate shall not personally engage "in any business" though he may be a sleeping partner in a firm doing business he may also act as a Director or Chairman of the Board of Directors of a Company with or without my ordinary sitting fee, provide none of his duties are of an executive character.

Charge of professional misconduct is in the nature of a quasi-criminal charge. It is required to be established, not by preponderance of probabilities but beyond a reasonable doubt. In the entire evidence led on behalf of the complainant, there is not a whisper that after the enrolment of the appellant in January, 1990 he engaged himself or carried on the taxi business. The evidence led in the case only shows the appellant owned four taxis after his enrollment as an advocate, the mere ownership of the taxis cannot lead to any irresistible conclusion that he was engaged in "taxi business" after his enrolment as an Advocate. In his deposition, the appellant appearing as RW-2 stated that after the issuance of the licence of the Bar Council, he lied start ... up his business in which he was engaged price to his enrolment as an Advocate and that he was not doing nay "taxi business" after his enrollment.

This statement has remained unregulated and has also gone unchallenged in the cross-examination. Even the complainant in his evidence did not depose that the appellant carried on with his taxi business after his enrollment as an advocate.

In the face of this material on the record, it is not possible to say that the complainant has established that after the enrolment of the appellant as an Advocate, he was personally engaged in taxi business. The evidence on the record is vague, indefinite and scanty. It does not establish the charge of misconduct against the appellant.

The disciplinary committee of the Bar Council of India, thus, fell in error in holding the appellant guilty of professional minsconduct. The charge again the appellant has not been established at all, let alone being established beyond reasonable doubt. Consequently, we allow this appeal and set aside the order of the Disciplinary Committee of the Bar Council of India dated 11-4-1998. No costs.

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