Court: Supreme Court of India
Citation: Jt 2001 (9) SC 480, AIR 2002 SC 41
Bench: D.P.Mohapatra & Shivaraj V. Patil
Theme: Professional Misconduct
Subject: The Advocates Act 1961
· In this case, the appellant was enrolled with the State Bar Council as an advocate on 16/09/1994 vide enrollment number P/771/94
· The respondent association made a written complaint to the State Bar Council making allegations that the appellant was carrying on and continued his business and business activities even after his enrollment as an advocate.
· The State Bar Council took recognition of the complaint and referred the complaint to its disciplinary committee.
· That he was running a photocopies documentation centre in the court compound Pathankot and the space for the same was allotted to the appellant in his personal capacity on account of being handicapped. He was also running a PCO/STD Booth.
· That he was the proprietor/ General Manager of the Punjab Coal Briquettes Pathankot, a private concern and he was pursuing the business / his interest in the said business even on the date when his statement was recorded by the Disciplinary Committee on 12/05/1996.
· The Disciplinary Committee of the State Bar Council witnessing Senior Telecommunication Office Assistant who deposed that STD/PCO has been allotted to appellant in the handicapped quota and the same is continuing in the name of the appellant even after his enrollment as an advocate and a clerk in the office of SDO also stated in his evidence that space for installment of photocopy machine was allotted on lease basis to the appellant in the handicapped quota. Thus, the Disciplinary Committee passed an order to remove the name of the Appellant from the State`s Roll of Advocates under Section 35(3)(d) of Advocates Act 1961 and debarred him from practicing as an advocate.
· The appellant filed an appeal to the Bar Council of India on re-appreciation of the material on record. The Disciplinary Committee of Bar Council of India confirmed the decision of the State Bar Council held the appellant guilty of professional misconduct and dismissed the appeal.
· The appellant filed an appeal under Section 38 of the Advocate Act, 1961 before the Supreme Court against the judgment an order passed by the Disciplinary Committee of the Bar Council of India, confirming the order passed by the Disciplinary Committee of State Bar Council removing the name of the appellant from the State Roll`s of Advocates under Section 35(3)(d) of the Act.
· Whether or not applicant was engaged or has ever being engaged in any trade, business or profession?
· Whether there order of removal of applicant name from the State Roll`s of Advocates and debarring him from practicing as an advocate is valid?
Important Arguments (from both parties)
The appellant contended that the allegations made were not established or proved and the allegations were not judged by the standard of proof required in such case, the appellant was not actually carrying on business and the evidence on the point was not properly appreciated, the punishment imposed on the appellant is grossly disproportionate.
The respondent contended that the appellant was guilty of professional misconduct as he was carrying his business even after his enrollment as an advocate. So his interest in continuing the business before and even after filing of the appeals before the Bar Council of India and this court cannot be accepted or sanctioned, further in spite of giving and undertaking before this court, he is still continuing his business supported by the report of the sub judges made to the court. According to respondent the punishment imposed on the appellant is proper in the absence of any good ground to take any lenient view.
The Supreme Court held that having persuaded both orders and evidence place on record the appellant was guilty of professional misconduct supported by and based on cogent and convincing evidence and the charge is proved beyond reasonable doubt.
The Supreme Court further held that having regard to the nature of misconduct and taking note of the handicap of the appellant debarring him from practicing for all time is too harsh. So they debar the appellant from practicing up to the end of December 2006. His licensed was cancelled for 5 years.
Present Status of the Judgment
The judgment given by the Supreme Court of India in Bhupinder Kumar Sharma v/s Bar Association Pathankot is still applicable. An advocate shall be held liable for professional misconduct if he carries any business other than his legal profession under the provisions of Advocate Act 1961.
It can be concluded that an advocate cannot carries any other business activities or profession. If he practiced any such activities, he shall be held guilty. The rules of the Bar Council of India clearly specified that no advocate can be a full time salaried employed person or a person carrying on any other business. He should not be personally engaged in any business but as per the rules of Bar Council of India he can be a share holder, partner, investor etc. The nature of such business is inconsistent with the dignity or nobility of profession. The nature of such business is a professional misconduct as per Advocate Act 1961.
Contributed by: Pinky Mehta (Chanakya Law College, Kumaun University)