WP(C)/5596/2002 of JYOTI PRASAD CHAKRABORTY Vs BAR COUNCIL OF ASSAM and ANR on 31 December 2002

WP(C) 5596/2002BEFOREHON’BLE MR. JUSTICE HRISHIKESH ROYHeard Mr. B. Chakraborty, learned counsel appearing for the petitioner. None appears for the respondents.

2. The petitioner who was compulsorily retired from service after a Disciplinary Proceeding, while serving as a Sub-Divisional Judicial Magistrate, has approached this Court to challenge the decision dated 7.3.2002 of the Enrolment Committee of the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh, whereby his application for resumption of practice was rejected. The decision of the Enrolment Committee is based on the provisions of Section 24-A of the Advocates’ Act, 1961 and Rule 7-A of the Bar Council of IndiaRules.

3. It is contended by the petitioner that application of Section 24-A to reject his application for resumption of practice is unjustified in as much as, the petitioner has been compulsorily retired and not dismissed or removed from employment. It is submitted by Mr. Chakraborty that assuming that compulsory retirement is a disqualification under Rule 24-A, such disqualification shall cease tohave effect after a period of 2 years from the date of removal and as such petitioner’s application for resumption of practice should now be reconsidered by the Enrolment Committee.

4. Referring to the Chapter (iii) provisions enacted under the Bar Counsel of India Rules, the learned counsel submits that Rule 5(2) is applicable to a person who wants to resume practice and such application is required to be considered by reference to the disqualification prescribed under Section 24-A of the Advocates’ Act and provisions of Rule 7-A is not attracted to a consideration for resumption of practice

5. It is further contended by Mr. Chakraborty that when Section 24-A permits consideration of application for resumption of practice 2 years after the dateof removal, the provisions of permanent debarment envisaged by Rule 7-A of the Bar Council of India Rules can have no bearing in the consideration to be made by the Enrolment Committee.

6. Although none has appeared on behalf of the respondent Bar Council, a counter affidavit has been filed on their behalf. It is averred therein that the rejection of the petitioner’s application is ordered by applying the spirit of Rule 7-A of the Bar Council of India Rules and there is no distinction in the applicable criterion for a fresh enrolment and a case, where resumption of practiceis sought by an applicant.

7. The papers pertaining to disciplinary proceeding leading to the order ofcompulsory retirement of the petitioner has been produced by the petitioner’s counsel for perusal of the Court. The substance of the charge against the petitioner is that while serving as the SDJM (S), Dibrugarh on 14.11.1997, on an application submitted by the prosecuting inspector for Auction Sale of articles seizedin connection with G.R. Case No. 277/97, the petitioner had passed order permitting Auction Sale of the seized articles, although the seized goods were not perishable in nature. The petitioner has been found guilty of the charge that he permitted the sale without obtaining permission of the Chief Judicial Magistrate. The petitioner was charged with failing maintain devotion to duty and conduct unbecoming of a Judicial Officer. But no charge of securing any illegal gratification has been levelled against the delinquent.

8. In the context of the above charge on the basis of which the penalty of compulsory retirement from service has been ordered, it cannot be said that the petitioner has been removed from service, on a charge involving moral turpitude or corruption. Therefore, rejection of his application by applying the provisions of Section 24-A and the spirit of Rule 7-A of the Bar Council of India Rules does not appear to the Court to be justified.

9. Even otherwise the disqualification incurred by an applicant under Section 24-A ceases to have effect after 2 years and under such circumstances, the disqualification can entail only temporary rejection of claim for re-enrolment.

10. That apart Rule 5(2) under Chapter (iii) of the Bar Council of India Rules prescribes the criterion under which an application for resumption of practice has to be considered and only the disqualification under Section 24-A of the Advocates’ Act are referred to in Rule 5(2) of the Rules. In my view Rule 7-A may not have any application for considering an application for resumption of practice as the said Rule applies to an application for enrolment and not to an application for resumption of practice

11. In the above circumstances, I am of the considered opinion that the impugned decision rejecting the petitioner’s application for resumption of practice,cannot be sustained and the same is accordingly quashed. Considering that 2 years have passed by since the compulsory retirement of the petitioner, I am of theview that the petitioner’s prayer for resumption of practice deserves a fresh consideration by the Enrolment Committee of the respondent Bar Council.

12. Accordingly this petition is allowed by permitting the petitioner to apply for fresh reconsideration and if such an application is made, the respondentsare directed to consider his prayer for enabling him to resume practice, havingregard to the provisions of Section 24-A of the Advocates’ Act.

13. The writ petition is disposed of in the above terms.