Read Time: 09 minutes

A division bench of Madras High Court consisting of Justices PN Prakasha and Nakkiran has pulled up a disciplinary committee set up by Tamil Nadu Bar Council for not permitting the legal heirs of the complainant to prosecute a case on his behalf. The case pertains to three advocates preparing a fake arbitral award and forcing its enforcement.

The history of the case is that one Vardhammal gave a power of attorney to her son Jagannathan to manage her 25-acre property, a politician named Nagaraj sought to obtain a loan by projecting the property as his own and tried to obtain a loan by keeping this property as collateral. The loan agreement, however, contained an arbitration clause and when there was a dispute between the parties, the clause was invoked. A collusive arbitration proceeding was initiated in conspiracy with some advocates and a fictitious award was passed on October 31, 2010 in which Nagaraj was directed to execute a sale deed in respect of the subject property in lieu of his loan.

Thereafter, Jagannathan approached the police station and filed a complaint and the investigation by the police revealed that Nagarajan was assisted by three advocates namely Rajaram, Ravi and Muthusamy. Jagannathan subsequently approached the Bar Council of Tamil Nadu against this and a disciplinary committee was set up after suspending the three advocates.

During the pendency of the disciplinary proceedings, Jagannathan died, therefore, his widow and two children filed two applications before the Bar Council for getting themselves substituted in the name of Jagannathan and for continuing the disciplinary proceedings. The Disciplinary Committee of the Bar Council by an order held that the legal heirs of Jagannathan cannot step into the shoes of Jagannathan and continue the disciplinary proceedings against the advocates. The disciplinary committee in its order noted,

“This Forum hold that the disciplinary proceedings before the Bar Council are Quasi-Criminal in nature. In fact there is no estate to claim in proceedings as in civil case to include the legal heirs to inherit estate. Hence, legal heirs of the complainant cannot be impleaded into the present complaint as the disciplinary proceedings are Quasi-Criminal in nature.”

In view of the dismissal of the application for substitution filed by the legal heirs of Jagannathan, to continue the disciplinary proceedings against the advocates, the disciplinary proceedings stood closed and as a result, the suspension order also came to an end and consequently, the advocates resumed their practice.

The dismissal of the substitution came to be challenged before the High Court in a writ petition and the court remarked, "We are, to say the least, baffled by the aforesaid conclusions. We are also at a loss to understand the import of the observation in the second sentence of the aforesaid passage which appears to be legally and linguistically incomprehensible.”

Court further noted that the Disciplinary Committee appears to have been ‘blissfully ignorant’ of the Bar Council of India Rules, which sets out the procedure to be followed by the Disciplinary Committee while enquiring into a complaint of misconduct.

Court noted that the Disciplinary Committee is not powerless to proceed with the enquiry even in a case where the complainant dies and there is no legal representative who is willing to conduct the case.

Court held that where the legal representatives of the complainant do not come forward to substitute themselves in place of the deceased complainant, the Disciplinary Committee is given the discretion to either proceed with the enquiry or to drop it.

Court further observed that where the enquiry is against more than one advocate, on the death of one of them, the Disciplinary Committee may still continue the enquiry against the other advocate(s), unless it decides otherwise.

Court, while allowing the writ petition, remarked, "In the case at hand, the Disciplinary Committee appears to have been greatly swayed by the fact that the proceedings before them were quasi-criminal in nature, and that the legal heirs of the complainant cannot be substituted in place of the original complainant for that reason. This conclusion betrays woeful ignorance of the settled position in criminal law that the legal heirs can apply for continuation of the proceedings against the accused upon the death of the original complainant”

Case title: Jagannathan Vs Bar Council of Tamil Nadu and Pondicherry