Bonafide Disciplinary Proceedings By Bar Council Have Statutory Indemnity Against Legal Action: Madras High Court

The bench of Justice RN Manjula observed as under:

The State Bar Council is expected to take a call and take action against any advocate if a complaint is preferred against the advocate and when the State Bar Council has reasons to believe that the advocate has been found guilty of professional misconduct or other misconduct, as per Section 42 of the Advocates Act, the Disciplinary Committee of the Bar Council is conferred with certain powers of the Civil Court for the purpose of conducting the disciplinary proceedings. In fact, under sec. 42((2) of the Advocates Act, the disciplinary proceedings so conducted shall be deemed to be the judicial proceedings. And hence statutory immunity has been given under Section 48 of the Advocates Act.

The crux of the case was that the fifth respondent had originally made a complaint of professional misconduct against the first respondent VK Sethukumar, a lawyer before the Bar Council of Tamilnadu and Puducherry. The bar council found him guilty and reprimanded him with certain directions. An appeal was preferred before the Bar Council of India and the order of the TN Bar Council was set aside. Sethukumar then filed a suit for damages from the Bar Council and the complainant. An application was filed by the Bar Council to reject the plaint but the same was dismissed.

The Bar Council mainly contended that all proceedings before the Disciplinary Committee of the Bar Council was deemed to be judicial proceeding and such legal proceedings/orders were indemnified against any legal proceedings before the court by virtue of Section 48 of the Advocates Act. As such, it was wrong on the part of the Civil Court to take the plaint on file.

Per contra, Mr. Sethukumar submitted that the benefit of Section 48 was available only when the action was taken in good faith. In the present case, the Bar Council had acted in a malafide manner. He cited an instance where a member of the Disciplinary Committee had called up the original complainant and asked him to attend the proceedings. According to Mr Sethukumar, this would substantiate the lack of good faith on the part of the Disciplinary Committee in initiating the disciplinary action against him.

Though Mr. Sethukumar had made allegations of bias against the committee members, the court noted that the same could have been to ensure the presence of the party during the proceedings. The court also noted that if there was any ulterior motive to that call, it would not have been made public and would have been made without the knowledge of Mr. Sethukumar. Thus, such conduct by the member of the Disciplinary Committee could not be used to confirm malafide intention.

The court noted that since the proceedings before the Bar Council were quasi-judicial, an aggrieved party could make use of the Appeal remedies provided under the Advocates Act. The grounds of appeal shall include all the shortfalls in the order of the lower forum. Thus, when no further appeal is made against the order of the first appellate forum, there cannot be anymore grievances left out.

Since the grounds of appeal before an appellate forum should include all the shortfalls in the order of the lower forum and the appellate order forum while considering the appeal, does the purging function and removes the dirt or deficiency in the order of the lower forum and passes an order on merit either by setting aside or confirming the order of the lower forum. Once an order is passed by an appellate forum and it is accepted by the appellant, it is deemed that the aggrieved had exhausted his appeal remedy. Unless one chooses to challenge the order of the first appellate forum also before the next rightful forum, there can not be any more grievance left out.

In the appeal preferred by Mr. Sethukumar, the appellate authority had not observed any malice on the part of the Bar Council. Further, Mr. Sethukumar had also not chosen to take up the unattended grievances before the Supreme Court. He had, therefore, accepted the order of the Appellate Authority which would mean that his grievance was properly addressed and resolved. Hence, he could not again claim that the action taken by the State Bar Council was malafide.

Explaining the concept of merger, the court highlighted that when a person got an order from an appellate authority, it would mean that the order of the lower forum got merged with that of the Appellate Forum and lost its identity.

The 1st respondent /plaintiff has not challenged the order of the Bar Council of Tamilnadu before the Supreme Court. Since the 1^st respondent/plaintiff had omitted to avail the statutory remedy by knocking at the next door in the hierarchy he is accepted the order of the bar council, he is estopped from alleging bias or lack of good faith on the part of the defendants 1 to 6.

Thus, finding no cause of action against respondents 1 to 6, who were the Bar Council, its chairman, and members, their names were struck out from the plaint. With respect to the seventh respondent, the original complainant, the court noted that there was no statutory ban to proceed against him and it was upon Mr. Sethukumar to prove malice.

Case Title: Bar Council of Tamilnadu and Puducherry v. VK Sethukumar and others

Case No: CRP (PD) No. 1347 of 2022

Citation: 2022 LiveLaw (Mad) 368

Counsel for the Petitioner: Mr.C.K.Chandrasekar