+W.P.A. No. 26174 of 2023
Somabrata Mandal Vs. Bar Council of West Bengal and others
CORAM: The Hon’ble Justice Sabyasachi Bhattacharyya
Judgment order dated: 13/12/23
Introduction
The High Court of Calcutta has recently contended that in a professed case of misconduct, The layout of the school of thought by the state bar council has enough reasons to believe that the advocate charged may be guilty of professional or other misconduct does not necessarily curtail the powers of the Disciplinary Committee to deal with the issue of maintainability of the complaint.
Facts of the case
The petitioner complained to the private respondents before the State Bar Council of West Bengal. Such complaint was received by the State Bar Council It is argued by the petitioner that the cut-off date for disposal of the said complaint as per Section 36B of the Advocates Act, 1961 was one year from the date of the receipt of the complaint. It is stipulated in Section 36B(1) of the said Act that failing such disposal, proceedings shall stand automatically transferred to the Bar Council of India, which may dispose of the same as if it was a proceeding withdrawn for inquiry under Section 36(2) of the Act.
The matter has been referred to the Disciplinary Committee by the State Bar Council only recently for adjudging the maintainability of the same. It is argued that it is beyond the jurisdiction of the Disciplinary Committee to decide the issue of maintainability as well. counsel for the petitioner places reliance on Section 35(1) of the said Act. It is contended that the same envisages a reference to the Disciplinary Committee. Sub-section (1) of Section 35, provides that where on receipt of a complaint or otherwise a State Bar Council has “reason to believe” that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee.
Senior Counsel cites Achal Saxena (dead) and Anr. Vs. Sudhir Yadav reported at (2017) 13 SCC 657, where it was held that given Section 36B of the Act, the State Bar Council was obliged to transfer the inquiry to the Bar Council of India after expiry of one year from the receipt of the complaint. argued by the respondents that in the absence of the existence of the jurisdictional facts which constitute a complaint under Section 35, the complaint of the petitioner itself should be rejected as not maintainable. Learned senior counsel cites Bhagwan s/o Maharudrappa Chougale Vs. Karnataka State Bar Council, Bengaluru, and others reported at 2019 (2) AKR 397, where it was observed by a learned Single Judge of the Karnataka High Court that the Disciplinary Committee, based on documents and affidavits, can decide the issue of whether jurisdictional facts are existent and, accordingly, can also decide and determine the maintainability of a complaint. A jurisdictional fact is one on the existence or non-existence of which depends jurisdiction of a Court, a Tribunal or an Authority. If the jurisdictional fact does not exist, it was observed, the Court, Authority, or Officer cannot act.
reiterated that the Disciplinary Committee has ample power to decide the issue of maintainability on an examination of whether jurisdictional facts at all exist in the complaint.
the first and primary objection taken by the petitioner to the proceeding before the Disciplinary Committee of the West Bengal State Bar Council is turned down, The second issue raised is whether the reference to the Disciplinary Committee also on the issue of maintainability of the complaint is valid.
In support of his argument, learned senior counsel for the petitioner has relied on the language of Section 35(1). A comprehensive perusal of the scheme of the Advocates Act, 1961 and the Bar Council Rules, however, indicates unerringly that the State Bar Council only forms a preliminary opinion as to the alleged professional or other misconduct.
Analysis of the court
The court did not find any reason to interfere with the impugned decision of the State Bar Council or the pendency of the matter before its Disciplinary Committee. However, nothing in this order confers a mandate to the Disciplinary Committee to extend its exercise of adjudication beyond the period of one year from the date of reference of the complaint to it, which would be de hors Section 36B(1), comprising the mandate of the Statute.
Accordingly, in the light of the above observations is dismissed on contest without any order as to costs.
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Written by Kaulav Roychowdhury
