21 Nov 2022 11:33 AM GMT
Stressing upon the significance of following principles of natural justice by any authority in power, the Karnataka High Court recently referred to the legend of Adam and Eve. Justice M Nagaprasanna observed,"God himself gave an opportunity of hearing to Adam and Eve before passing the sentence for consumption of the forbidden fruit. The principle has emerged since then. Thus, it is...
Stressing upon the significance of following principles of natural justice by any authority in power, the Karnataka High Court recently referred to the legend of Adam and Eve. Justice M Nagaprasanna observed,
"God himself gave an opportunity of hearing to Adam and Eve before passing the sentence for consumption of the forbidden fruit. The principle has emerged since then. Thus, it is not today that this concept exists; it is as early as humanity."
The impugned order was passed by the BCI following a complaint that Naik misused the signature of one of his clients to sell the client's property without permission.
When asked whether any opportunity of hearing was awarded to Naik before passing an order which has such dire consequences, the BCI counsel had "no answer", the Court said.
It then referred to section 48A of the Advocates Act which prescribes that no order which prejudicially affects any person shall be passed by the BCI without affording a reasonable opportunity of being heard.
In this light the Court remarked,
"Adherence to principles of natural justice is recognized by all civilised States and civilised societies to be imperative, to be followed, when any judicial, quasi judicial or administrative body embarks upon determining the dispute between the parties or any order that would be passed resulting in civil consequences...The bedrock of such acts are the principles of audi alteram partem and fair play in any action. Fair play in action is in effect grant of a fair hearing; fair hearing would be to have notice of the other side's case; right to bring evidence and right to argue. If these are not provided, the Court would step into nullify such acts, be it quasi judicial or administrative."
The Court noted that the impugned order was not even communicated to Naik. It was communicated only to three members – one the complainant, the other the Karnataka State Bar Council and the 3rd the Advocates for the complainant before the BCI. "The impugned order which has grave civil consequences on the petitioner is passed at the outset, without hearing him and even communicating it to him. The petitioner comes to know of it when the order reaches the State Bar Council."
The court also rejected the contention of the complainant that since this is only an order at the interim stage, an opportunity of hearing need not be given and it is always open to the petitioner to seek vacation of the interim order by appearing before the 1st respondent.
It said, "Order, would mean, each and every order that would prejudicially affect any person. The prejudice caused in the case at hand is, taking away the livelihood of the petitioner as he is barred from practising in any Court of law. Therefore, an order as observed in subsection (2) of Section 48A would mean any order either interim or final which would prejudicially affect the person. If it is affecting the person or would result in any civil consequence, such an order cannot and ought not be passed without, at the outset, complying with the principles of natural justice."
Accordingly, it quashed the interim order passed by the BCI and remitted the matter back to afford a reasonable opportunity of defence to the petitioner, conduct proceedings in accordance with law and pass appropriate orders in consonance with law after considering the defence of the petitioner.
Case Title: K. B. NAIK v. BAR COUNCIL OF INDIA & Others
Case No: WRIT PETITION NO. 20983 OF 2022
Citation: 2022 LiveLaw (Kar) 469
Date of Order: 17TH DAY OF NOVEMBER, 2022
Appearance: P.P.HEGDE, SR.ADVOCATE A/W SAGAR G.NAHAR, ADVOCATE for petitioner; SHRIDHAR PRABHU., ADVOCATE FOR R1; GAUTHAM A.R, ADVOCATE FOR R2; KETHAN KUMAR, ADVOCATE FOR C/R-3.
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