Bombay High Court Pulls Up BCI, BCMG For Suspending Female Lawyer's Licence Without Following Principles Of Natural Justice

The Bombay High Court recently stayed an order passed by the Bar Council of India (BCI) by which it had suspended the licence of a Mumbai-based female advocate over a complaint by few members of the Advocate Association of Western India (AAWI)A division bench of Justices Girish Kulkarni and Advait Sethna questioned the manner in which both the BCI and the Bar Council of Maharashtra and Goa (BCMG) dealt with the complaint against the female advocate in total disregard to principles of natural justice. "The nature of the impugned order certainly entails civil consequences, as it has the effect of taking away the source of livelihood of the petitioner who is an Advocate having a standing of 24 years," the judges said in the order passed on January 22.The bench further opined that not only "substantive fairness" but even "procedural fairness" was required to be adhered to, by the BCMG and BCI in conducting the impugned proceedings against the petitioner. "Further the principles of natural justice appear to have been thrown to the winds which was expected from a responsible statutory body, which is clear from the fact that affidavits of the complaint dated April 13, 2024 were served on the petitioner on the day of the hearing i.e. on April 14, 2024 without any opportunity being granted to the petitioner to deal with such new material, and astonishingly on the same day the impugned order is stated to have been passed," the bench noted. The case pertained to a challenge by the female advocate to the order passed on April 14, 2024 by the BCI by which her licence was suspended for a period of two years. This stemmed from an incident that took place on April 4, 2016, when allegedly the petitioner advocate threw the case briefs (files) of the complainants on the floor. The incident took place in room number 18 of the Bombay High Court building, which is earmarked for the members of the AAWI.According to the complainant advocates, they claimed that the petitioner though not being a formal member of the AAWI was using the electricity, air conditioning facilities and even charging her phone and laptops there, without permission and without being a member of the same. These advocates, however, lodged the complaint regarding the same with the BCI on September 8, 2017, which is more than one and a half years, after the incident of the petitioner throwing their briefs on the floor.The judges noted that there was no clarity as to whether AAWI was aware of the incident or not since AAWI did not file any complaint against the petitioner. Further, the bench noted that despite the complaint being lodged, after a delay, the BCMG kept it pending till April, when the petitioner was informed that the complaint was transferred to the BCI."As to when and under what procedure (even if so required by law) it was transferred to the BCI was not informed to the petitioner. In fact, a notice dated April 2, 2024 intimating the petitioner the date of hearing on April 14, 2024, was issued by the Secretary of the BCMG, which also does not indicate that the jurisdiction of the committee is not with the BCMG but with the BCI and/or that the adjudicating forum is not the committee of the BCMG but the BCI. A party to the proceedings being not informed of the jurisdictional authority which decide the complaint itself, is fatal to all norms of fairness, this was the most besic expectation of the petitioner," the judges noted. In the present case, the judges noted that the AAWI itself had not made any complaint against the petitioner and even if such complaint was to be made by any member, it could not have been a complaint entailing consequences of suspension of the licence to practice for two years as imposed on the petitioner."What is more important is the case of the petitioner that the complaint was not bonafide or was untenable, being a counter blast in view of the proceedings taken by her against some advocates/ member of the BCMG appears to be of serious nature, as categorically set out in her replies to the complaint., which in our opinion was a relevant aspect to test the bonafides of the complainants in pursuing their belated complaint against the petitioner," the bench said.The judges were also astonished as to for what reason the BCMG kept the complaint pending for long years, and / or did not decide the same at the BCMG so as to let the same being transferred to the BCI, is another factor which needs to be gone into. "Whether such laxity was intended for ultimate transfer of the proceeding to BCI considering the background and peculiar facts of the case, is also a question. In the facts and circumstances of the case and considering the rights of the petitioner guaranteed under Article 14 of the Constitution of India and 19(1)(g) and 21 of the Constitution of India the petitioner is entitled to interim reliefs," the judges held, while staying the suspension of the advocate's licence. Appearance:Senior Advocate Santosh Paul appeared for the ...

Bombay High Court Pulls Up BCI, BCMG For Suspending Female Lawyer's Licence Without Following Principles Of Natural Justice

Narsi Benwal

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