s.

Comp iaint again st advo cates and proc edur e to be

follo~ ed by the Disci plina ry Com mitte e.
Part -VIJ .·,of the ;RulefS~ ,;_9~(~:_:• -J~~ .-9puncil , _Qf India •deals with the
comp\~int -~ agains t th~ advo~ates and proce~ µre to be followed by the
disciplinary committee of the State Baro Counc il and -the Bar Council , of
-Jdia~) These· rules may be explai ned as follows :
-.CoDlplaint and enqui ry under Sectio ns a5, 36 and 36-B of the
x'\
;~ti}
Advoc ates Act.-T he provisions . of Sectio ns 35, 36 and 36-B of the
1 . Advocates Act have alread y·been .discus sed unde_r this C~apt er. R~e l of
-. 1~tart VII of the Rules framed by the .Bar Counc il of India makes 1t clear
.~J/ that. a_ complaint ag~ns t an adv?cate shall be in the form, .of a petition
ur~. -
~-J-- duly signed and verifie d as reqwr ed under the Code of Civil Proced
A

. . •

-
'

~\ ) q
•

~\C ~
 .'
PUNISHMENT FOR PROFESSIONAL OR OT!-'t=R 1118
n,;;i m,, CONDUCT
105
• E .
al5O provides tha t if the complaintthisthnot In Egh sh, a translation
Jt Eng lish sha ll be filed alongwi
f in
!I tbe::olilPanied. by the fees as prescrib
v;;
ed inet~: :ie s commmnt"fflml
Council amed by ~he Bar
.~ uncil of Ind ia. The Sec reta ry of the· Bar may reqw re the
(Co pJainant to pay the pres crib ed fees
if not paid t
compllrin~ rem ;~e andy defects
co: call for suc h par ticu lars or copies ~f the oc?IDents ,
an JilaY be considered necessary. If the complaint is 10unodr 1n erd or er 1t shall
as d I d be1or L".
e the Bar Cou ncil for su h d .
be registered an pac e ay
eelll fit to pass . Rul e 1 mak es . it.
clea r tha t no ma t~r otrakerenasupitbm Y a
·1 t .
d plaint made under Section
State Bar Counc1 suo mo u or ans mg on a com
on of its having bee,i
35 of the A: s;a ll ~: dr?p ped solely by orreas that the complainant does
,; withdrawn, se 1e ~r o_ erw1se comprom
ised
ot want to proceed With the enquiry.
plaint und er Section 35
. Rul~ ~rovides th~ t before referring a com
may require a complainant
the ~sc 1p~ 1n~ co1:11m1ttee, the Bar Council
her and bett er particulars
·to furmsh with in a tim e to be fixed by it, furt
·if and may al~o call for the comcom ments .from the S:Ovocate complained against.
N- Rule 3 provides tha t afte r a plaint has been referred to a disciplinary
r shall expeditiously send a
co~ itte e by the Bar Council, the Registra
him to show cause within a •
notice to the _advo~~te con.cerned requiring and to submit the
sp c e a e on the complaint made against him
avits in suppdrt of such defence
• s tement of defence, documents and affid
non-appearance on the date
and further informing him tha t in case of his
and- determined in his absence.
of hearing fixed, the mat ter shall be hea rd
cted, appearance by an advocate
. Appearance includes, unle ss otherwise dire
If the disciplinary committee
or· through duly auth oris ed representative.
a replication within such time
requires or perm its, a complainant may file _
a~ mri ,qe_ fixed by the committee.
irm,an ~!;h e d?sciplinary comm~ttee. shall
•
1
. -I, fY'} ~:i(i.iYei provides tha t the Cha
l fix the date, hou r and placErcd7r00 f "ffle enqwry which shall not ordinanly be
later tlia n 30 ·oay s fronI 'ttre
0
0ipt of the reference. The Registrar is
and place to the complainant
\1 r~uired to give notice of such date, hour
advocate concerned . and the
\': or . other person aggrieved, the General of India or· the
torney-General or the Additional-Solicitor-
also to serve on them1 copies
Advocate-General as the case may be, and
mentioned in Rule 24 of _this
. of the complaint 'and su~h othe r documents
Rules· of the Bar Council of
chapte;r (i.e., Cha pter I) of Par t VII of the
may direct -at least ten days
India as the Cha irm an of the Committee
before the date fixed for· the ·enquiry.
of t1ie notice. It provides
Rule 5 deals with the ~no ei: a£ aer1vice
VII of the Rules of the
e notices referred to in Chapter I of Par t
f

t a
modificat~on, be in Form , .
Council of Indi a shall, subject to necessary
s appearing for the parties.
Nos. E-1 and E-2 and be sent to the advocate
cate shall be sen t' to the
Notice to a part ~ not appearing by the advo grounds of appeal. The
the
address as furnished in the complaint or in
the complainant, unless the
cost of the notice shall be borne by
--- 1 -:-- -.... :..·--
. • As to this Rule' see
-;-·
-- - •
below in this chapter.
•
p

106 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATION

•
disciplinary committee otherwise directs. The notice may be sent ordi .
through messenger or by registered post-acknowledgment due and nanly
.
on the advocate or the party concemed or h 1s agent or other persserved
Provided for in Order V .of the.b
CiviJ Procedure Code. Notice may alon ~8
h
service t rough any Civil Cso' if
c. •
so directed by the committee e sent 1or
as provided for under Section 42( 3) of the Advocates •Act. ourt,
Where the notice sent to any party cannot be served as aforesaid .
may be served by affixing a copy -thereof in some conspicuous place .1t
the office of the Bar Council and also upon some conspicuous part of t~n
house in which the party concerned is known to ha~e last ~esided or h~
his office or in such other manner as the . Committee th1~ fit. Such
service shall be deemed to be sufficient sel"Vlce. Payme;11ts of bills and/or
charges for summons to. witness, etc. shall be in accordance with the rules
made by the Bar Council of India ·under Section 49(h) of the Advocates
~Act. · . •
, According to Rule 6 of Chapter I of Part VII of the Bar Council of

'.j-J
India the parties can appear in person or _by an advocate who should file
a vakalOtnama giving the name of the Bar Council in which he is enrolled,
his residential address, telephone number (if any) and his address for
~'-service of notices. A senior advocate is entitled to· appear with another
,
6 advocate
who has filed a vakalatnama. The Bar Council or its disciplinary
6..-.. ,~ Committee may at ·any stage of a proceeding appoint an advocate to
,s appear as amicus curia. Such advocate may be paid such fee as the
<j Council or the Committee may decide. Excepting when the committee has
\J otherwise directed, service on the advocate shall be deemed to be sufficient
service on the parties concerned, even if copies of the notices are in
addition sent to the parties, Whether the parties have _or have not been
served. Unless otherwise indicated, where more than one advocate appears -
.I
for the same party, it is sufficient to serve the notice on any of them.
Rule 7 of Chapter I of Part VII provides that if in an enquiry on a
complaint received, either the complainant or the respondent does not
0 95 appear before the disciplinary committee in spite of service of notice, the
t-/ committee m' proceed ex parte or direct fresh notice to be served. Any
/ such order for proceeding ex parte may be set aside on . sufficient cause
U} vt):>eing shown when an application is made supported by an affidavit,
within 60. days of the passing of the ex parte oi:der. The explanation to
\ the Rule makes ~t clear that the •provisions of the Limitation Act, 1963,
shall apply to it.
Rule 8 of Chapter I ~f Part VII provides that the disciplinary
committee shall hear the Attorney-General or the Additional
Solicitor-General of India or the Advocate-General as the case may be or
their advoc~te and parties or their advocates, if they desire to be heard
and determine the matter on documents and affidavits unless it is of the
opinion t~at . it should be in th~ interest . of 'justice to· pe~it
cross-exam1nat1on of the defendants or to take oral evidence, in which
case the procedure for the trial of civil suit shall as far as possible .be
followed. The disciplinary committee may, at 'any stage, direct the parties
 PUNISHMENT FOR PROFESSIONAL 0•8 07iur:o
· n~nMISCONDUCT
107
it advocates to furnish such further d b ..
tbe T\ecessary. • . an etter particular as it
ot siders £~. •

caf!, t>~·'e 9 of Chapter

~Ul •
I of Part VII provi'des that evidenc
.•
• b
, .
. disciplinary committee shall be recorded re£ bl . . e1ore
ri 4 e t,er of the committee or any other p era Y m nghsh y any
e!ll •ttee, The· evidence so recorded shall be ~~rs:: bauthons .. by the
, c01Jl1llltbe Chairman is not there when the evidgn . Y the Chairman or.
if 1,er of the Committee. ence _is recorded by any
i Jll
eJJl • .
Whenever .the record of a case decided by th St te B .
0
1if:ts disciplinary eornrnitte~ i~ whic~ evidence ha: b:en r:O~:i:: ~
.
,t :.."'miage other than
}ai,e- . di . r .
English ~s reqwr~u-t:t+,...J - - t to the Bar Council of
ereof in English made
1ndia or its sci~ 1:Ilary ~ommittee, rans_lat1
, by a person by the comm1~tee o •strar certifyin the same
to be true._ copy shall also be sent e---W •g
. ~ule 10 of. Chapter I ~f J;>art .VII r,quires every disciplinary
muut~e to make a record of its da -to-day •oceedings. It provides that
e .~gistrar of the_ sc1p mary committee shall main run a case diary
88tting out· sh?rtly 1n order of date all relevant information concerning
the -date of filing, the date for hearing and de~patch and service of the
notices on t~e parties or the. advocates or the Attorney-General or the
Additional Solicitor-General or the Advocate-General, as the case· may be,
of statements or petitions filed and/or of the order thereon and of other
proceedings in' the matter before the Committee..
- If in an enquii-y pending before the disciplinary committee, the
complainant dies and there is no representative who is willing to conduct ,
the case on his behalf, the ·disciplinary committee m_ay, having regard to
the allegations made in the complaint and .the evidence available make a
I . suitable order either to pro~ed with the , enquiry or to drop it. - In the
case of an enquiry against only one advocate, on. his death the disciplinary
committee shall record the fact of sucJ:i death and drop the proceedings.
Where an enquiry is against more than one advocate on the death. of ~ne •
. of them, the disciplinary, committee may continu~ the enquiry against the
other·advocate, .unless it decides otherwise. No disciplinary enquiry shall.
be dropped solely by . reason , of its havi~g, been withdrawn, settled or
o~erwise compromised or. that the complainant does not w~t to proceed
with the enquiry. . ·. • ·, . • . . . ,. •. . : . .. .
~\\\ Rule 14 makes it clear that the finding of the majo~ty of the
embers of the disciplinary committee shall be the finding of the
---...........ittee. The reason given in support of the finding may be given in
the form of a judgment and in the case of a differences of opinion, any
_lllember dissenting shall be entitled to record his ·~ssent giving his own
reasons.' It shall. be competent for· the disciplinary committee to award
SUch costs as it thinks .fit. The Registrar of the disciplinary committee is
184Uired to send to each of the parties in the proceedings a certified copy
of the final order or judgment. . . . . .
1 has held that a
_ Standard of proof.-In _a case the Supreme Co~ •
Qt I . • . • • •

11 re an Advocate, AlR 1989 SC 245.

r --

108 LEGAL ETHICS, ACCOUNTABILl1Y OF tAWYERS & BENCH-BAR.RELATION

proceeding before the disciplinary cotntnittee is essentially quasi-criminal

in nature and therefore the standard of proof for this purpose is the sa~e 1

which .is required for convicting an accused in. a criIDinal chai-ge. The
2
benefit of doubt is given to the advocate concerned. 1 The Supreme Court •
has obsel"Ved-'that the disciplinary_ committee empowered to conduct an
enquiry and to inflict the punishment on behalf of the body in formiD;g
an opinion must be guided by the dOctrine •of benefit of doubt and 15
under the obligation to record a finding of guilt only upon being satisfied
bey~nd reasonable doubt. . f• . .
4. · Remedies against the order of punishment
C!- .-L! - - n ,- . • ., , • • , • . . . ,- •,
lref--t"Raf.
£"'&.J..-.4.-"