Bar Council Cannot Suspend Licence To Practice While Referring Complaint Against Lawyer To Disciplinary Committee: Punjab & Haryana HC

The Punjab and Haryana High Court has quashed a resolution passed by Bar Council of Punjab and Haryana suspending the licence of practice of a lawyer who allegedly posted derogatory comments in Facebook about the judiciary and lawyers.

The Court held that the the provisions of the Advocates Act and the BCI Rules do not bestow power on the State Bar Council to suspend the licence to practice of an Advocate while referring the complaint against him to it's disciplinary committee.

In this case, the State Bar Council had taken suo moto cognizance of certain remarks allegedly made by Advocate Vijay Bharat Verma on Facebook. According to it, he was served with a show cause notice via WhatsApp and speed post. As there was no response from the lawyer, the Bar Council passed a resolution referring the complaint to a Disciplinary Committee for taking appropriate action and, in the meantime, the license of the lawyer to practice as an Advocate was suspended. Against this resolution, the lawyer approached the High court by filing a writ petition.

The issue raised in the writ petition was whether the Bar Council can, on a complaint, suo-moto or filed by a complainant, pass an order suspending the licence to practice of an Advocate while referring the complaint to a Disciplinary Committee"?

Justice Alka Sarin observed that an order suspending the licence to practice of an Advocate operates to his prejudice not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of his professional career which can be described as a civil death. Referring to the Advocates Act and BCI Rules, the court said:

"There is no provision in the 1961 Act or the BCI Rules which empowers the State Bar Council (respondent) to pass an order of punishment, even in the interim, against an Advocate. Section 35(3) of the 1961 Act gives the power of reprimanding, suspending from practice or removing the name of an Advocate from the State Roll only to the disciplinary committee. Even the BCI Rules do not bestow any such power on the State Bar Council (respondent)"

The court disagreed with the view taken by Madras High Court in K. Sathyabal vs. Bar Council of Tamil Nadu and Puducherry & Ors.' [2016(3) MLJ 714] in which it held that since the disciplinary committee is a creature of the State Bar Council , what such a disciplinary committee can do can always be done by the State Bar Council. The court observed:

"It is a well-accepted principle that a body created by a statute must conform to the provisions of the regulating statute. In the present case, the power of taking any punitive action against an Advocate for misconduct vests under Section 35 of the 1961 Act only with the disciplinary committee of the State Bar Council (respondent). The procedure for taking such action has been detailed in the BCI Rules. It is trite law that a body created by a statute only has powers granted expressly or by implication in that statute. There is no specific or implied power conferred on a State Bar Council under the 1961 Act to take punitive action against an Advocate while simultaneously referring a complaint against him to the disciplinary committee. A statutory body like the State Bar Council has to justify exercise of its powers within the four corners of the statute which has created it. The State Bar Council (respondent) has been unable to satisfactorily discharge this onus in the present case."

The court did not answer the issue raised whether certain posts on social media by an Advocate can be termed as misconduct. The court added that it is always open to the State Bar Council to initiate fresh proceedings against him if so advised.

Case: Vijay Bharat Verma vs. Bar Council of Punjab and Haryana [CWP-13235-2020]

Coram: Justice Alka Sarin

Counsel: Sr. Adv Suhail Dutt, Adv C.M. Munjal

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