P L D 1965 Supreme Court 479 (PLP)

S. A. RAHMAN, J.‑This appeal, by special leave, raises the question whether the High Court of West Pakistan still possesses the power, exercisable under its rules, to order suspension of an Advocate's licence, pending a disciplinary inquiry against him. The High Court has answered the question in the affirmative and this view is challenged by the present appeal. The question has arisen in the following circumstances. On the 5th of September 1962, a letter was issued by the Registrar of this Court to the Registrar of the High Court, enclosing a copy of a complaint dated the 13th of July 1962, made by this Court to the District Magistrate, Lahore, under section 195 of the Criminal Procedure Code, against the appellant, Sardar Shah Bokhari, who was an attorney of this Court and an Advocate of the High Court. The papers were forwarded to the High Court for information and such action as the Judges of that Court might see fit to take, in respect of the appellant's capacity as an Advocate of the High Court. This letter was followed by another letter dated the 25th of October 1962, with which a copy of a further complaint made by this Court to the District Magistrate, Lahore, against the appellant, was also forwarded for information of the High Court. The complaint had indicated that there was a possibility that a number of criminal offences of a non‑cognizable nature, in respect of a fabricated copy of a judgment, falling within sections 177, 182, 199/200 read with sections 191, 197/198 and 466/471 of the Pakistan Penal Code, might have been committed. The appellant had deposited his attorney's licence in this Court and had discontinued his practice in that capacity. On the receipt of the first letter in the High Court, a learned Single Judge of that Court issued a notice to the appellant to show cause why his name should not be removed from the rolls of the High Court. The case was then put up before a Bench of two Judges, in accordance with the High Court Rules and Orders. The appellant was heard in answer to the show‑cause notice and then an order was passed making over the case to the Bar Council for inquiry and report, under section 10 of the Bar Councils Act, 1926, (hereinafter referred to as the Act). The appellant's licence to practise as an Advocate of the High Court was also suspended ad interim. The appellant moved the High Court by a review petition to get the order of ad interim suspension of his licence vacated but failed. He then applied for special leave to this Court, which was granted in the following terms:‑ "The power which the High Court has purported to exercise has been derived by a process of construction from three legal instruments, viz, two provisions in the Bar Councils Act and the General Clauses Act respectively and a rule in the High Court Rules and Orders, and it is urged that the interpretation adopted is not correct. Moreover, the High Court order is in original jurisdiction, and deals with a matter of general! importance to the legal profession. We accordingly grant leave to appeal." It was not considered necessary, however, to grant him ad interim relief against the order of suspension of his licence to practise as an Advocate. It was represented before the High Court by the appellant that as the complaints made against him by this Court were pending in the Court of a Magistrate exercising powers under section 30 of the Criminal Procedure Code, a finding given by the High Court, even of an ad interim nature, was likely to prejudice his defence in those cases and that a reference to the Bar Council would also result in a ‑ double inquiry into the same matter. His prayer, however that the proceedings in respect of the alleged professional misconduct be stayed, was not acceded to. The learned Judges were prepared to grant his request provided he gave an undertaking voluntarily, not to practise, until the truth or otherwise of the charges against him, had been established in the criminal Court, but he declined to give such an assurance. The High Court held that it was not in the public interest and particularly that of the litigant public, that the appellant should, in the circumstances of the case, be allowed to practise as an Advocate, until such time as his name was cleared of the very grave charges pending against him. , The learned Judges then examined the question whether legally his licence could be suspended meanwhile. They observed that the Act contained no specific provision in regard to suspension of a licence of an Advocate. Reliance was, however, placed on section 19 (4) of the Act which runs as follows:‑ "(4) When this Act has come into force in respect of any High Court, any provision of any other enactment or any order; scheme, rule, form or bye‑law made thereunder, which was before that date applicable to Advocates, Vakils or Pleaders, entitled to practise in such High Court, shall, unless such a construction is repugnant to the context or to any provision made by or under this Act, be construed as applying to Advocates of the High Court, enrolled under this Act." Rules 3 and 4 of High Court Rules and Orders, Vol. V, Ch. 6‑C, were then referred to by the learned Judges. The combined effect of these rules is that if a complaint of professional misconduct is received against an Advocate, the Registrar of the High Court shall call upon the person concerned, to submit within 14 days of the receipt of the notice, a written statement in answer to the allegations made. After consideration of the reply thus received, if any, the Registrar is enjoined by the rules to lay the papers before a Single Judge, acting in his administrative capacity. The Judge is then authorized to order such preliminary inquiry as he deems necessary and if he is of the opinion that there are grounds for proceeding further, he may order the papers to be laid before a Bench of two Judges. The subsequent proceedings are regulated by rule 3 which may be reproduced with advantage:‑ "3 (i) When a report and copy of a judgment are received under the last preceding rule, the Registrar/Deputy Registrar shall cause them to be laid, with the least possible delay, before a Bench of two Judges of the Court. The Bench may make such preliminary inquiry as it considers necessary, and, if it is of opinion that a prima facie case is made out for taking action against an Advocate, shall pass an order directing that the case be heard by a Bench of three Judges and shall call upon the Advocate‑General to draw up a statement of charges against the Advocate. When passing such order, the Bench may also suspend the Advocate from practice, pending the decision of the disciplinary proceedings against him. (ii) The Bench of two Judges may issue notice to any Advocate to show cause against an enquiry being directed on the ground that the matter imputed, if true, does not constitute reasonable cause for suspension or dismissal. (iii) If the Bench is of opinion that there is no ground for taking disciplinary action against the Advocate, its decision shall be final." The learned Judges found that there was no repugnancy between the rules and the Act, in so far as it gave power to order ad interim suspension of the licence of an Advocate. Additional support was sought to be derived for this position from section 16 of the Central General Clauses Act, 1897, which lays down that where, by any Central Act or Regulation, a power to make an appointment is conferred, then, unless a different intention appears, the authority to make the appointment shall also have power to suspend or dismiss any person appointed, whether by itself or any other authority, in exercise of that power. With respect, it seems to us, that this provision of law had no bearing on the present case which does not involve any C "appointment" of a person by a competent authority. 5ectiop 8 (1) of the Act which provides that no person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of the Court maintained under the Act, cannot, in our opinion, be pressed in aid of the argument that the admission of an Advocate to the rolls of the High Court, amounts to the making of an appointment. The enrolment is more akin to the grant of a, licence to practise a trade or a profession. The High Court of West Pakistan was declared to be a High Court to which the Act applies, by a notification issued under subsection (2) of section 1 of the Act, on the 27th of February 1956. By another notification dated the 1st of March 1956, the provisions of sections 3 to 16 of the Act were made applicable to this High Court. The remaining provisions of the Act were already applicable, proprio vigore, by virtue of subsection (3) of section 1 of the Act. The whole Act thus became applicable to the High Court. Subsection (4) of section 19 of the Act preserves the force of the existing High Court Rules, bearing on the subject of Advocates, unless there be something in them repugnant to the context or any provision made by or under the Act. It is common ground between the parties that no rules have been framed under section 15 of the Act, by the Bar Council, with the previous sanction of the High Court, in regard to discipline and professional conduct of Advocates. Rules 3 and 4 of High Court Rules and Orders, Vol. V, Chap. 6‑C, undoubtedly gave power to the Court to suspend an Advocate's licence pending an inquiry against him. The question that falls for determination is whether this power has been taken away, after the application of the Act to the High Court. That there has been no express provision to that effect is conceded on behalf of the appellant. It is, however, strenuously maintained that the implications of the provisions of the Act militate against the preservation of the power to order an ad interim suspension. The argument raised by Mr. Karam Elahi Chauhan in support of the appeal is that section 10 of the Act empowers the High Court "in the manner hereinafter provided", to reprimand, suspend or remove from practice any Advocate of the High Court whom it finds guilty of professional or other misconduct. The "manner hereinafter provided" is, according to learned counsel, detailed in subsection (2) of this section which reads as follows: "(2) Upon receipt of a complaint made to it by any Court or by the Bar Council or by any other person that any such Advocate has been guilty of misconduct, the High Court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the Bar Council or, after consultation with the Bar Council, to the Court of a District Judge (hereinafter referred to as a District Court) and may of its own motion, so refer any case, in which it has otherwise reason to believe that any such Advocate has been so guilty." Section 11 then provides that where any case is referred for inquiry under section 10, the case shall be enquired into by a Committee of the Bar Council (hereinafter referred to 4s the Tribunal) whose composition is also laid down in that section. Section 12 enacts that the finding of a Tribunal on an inquiry referred to the Bar Council, shall be forwarded to the High Court, through the Bar Council, and on receipt of the finding, the High Court shall hear the Bar Council, the Advocate‑General and the Advocate concerned and pass final orders. Learned counsel suggests that this procedure is exhaustive of the matter and that as no provision exists therein, for passing an ad interim order of suspension of an Advocate's licence, this power was no longer available. The short answer to this argument is that the provisions of section 10 and the High Court rule which permitted the order of suspension of a licence ad interim to be passed, can both stand together and there is no repugnancy between them. The High Court, it seems, still retains control over Advocates. Only one intermediate stage in a case of this kind, namely, the inquiry stage, seems to have been relegated to the Bar Council, if the Court so decides. When the report is received back from the Bar Council, it can still be placed, as requires: by the rules, before a Bench of three Judges, for final orders, It is only in respect of the agency for inquiry in such cases that a variation has been introduced into the rules, by the provisions of the Act. In other respects, the force of the rules is not detracted from. It is significant that it is the High Court that has to frame rules under section 12 of the Act, prescribing the procedure to be followed in the conduct of inquiries by Tribunals and District Courts and that the Bar Council can only frame rules under section 9, to regulate the admission of persons to be Advocates, with the previous sanction of the High Court. Moreover, such rules cannot limit, the power of the High Court to refuse admission to any person to its discretion, vide the proviso to subsection (1) of Action 9. In the alternative, the suggestion was put forward that if the provisions of sections 10 and 14 of the Act are read together, the inference should be that no curb can be placed on the right of an Advocate to practise before the High Court, except in accordance with the procedure envisaged by section 10. Section 14 of the Act, it is contended, provides a charter for the Advocates and it cannot be encroached upon,, save as the result of a final adjudication of the allegations of misconduct against an Advocate. The relevant rule of the High Court which permits a suspension order, ad interim, to be passed against an Advocate, is said to be repugnant to its provisions; by necessary implication. It is to be noticed, however, that section 14 of the Act does not ex facie lay down that its provisions are subject to any other provision of the Act, except specifically the provisions of subsection (4) of section 9, which provides that nothing in the Act would be deemed to limit or in any way affect the powers of the High Court of East Bengal, to prescribe the qualifications to be possessed by persons applying to practise to that High Court, in the exercise of its original jurisdiction or the powers of that Court to grant or refuse,, as it thinks fit, any such application or to prescribe the conditions under which such persons shall be entitled to practise or plead. It is obvious, nevertheless, that section 14 is clearly subject to the provisions dissections 10 to 12 of the Act which lay down the machinery for adjudicating the guilt or otherwise, in respect of professional conduct of an Advocate and for award of due punishment to him. It seems to have been assumed, therefore, while including section 14 in that Act, that it has to be read in the context of, the whole Act and would be subject to the other provisions oft the Act, including section 19 which preserves the old High Court Rules, in so far as they are not inconsistent with any provision of the Act or a rule framed thereunder. Any other construction of section 14 which gives it sanctity, in isolation from the other provisions of the Act, would make the Act itself unworkable. The meaning of section 14 obviously is not that an Advocate once enrolled by the High Court has the right to continue to practise, without any let or hindrance, thereafter. Although the section is headed "Right of Advocates to practise" it seems directed towards specification of Courts in which enrolled Advocates would be entitled to appear in the course of their practice. It is not evidently designed to confer an inalienable right of advocacy on the persons concerned, even when they commit some transgression of the disciplinary rules that govern them. If it was the intention of the Legislature to do away with the effect of the High Court rule in question, one should have expected an express provision to be made accordingly. The Legislature must have been aware that such a rule existed and that over the years, power had been exercised thereunder by the High Court. The suggestion that the matter was left to lie governed by an inferential implication alone, appears to us to be unconvincing. It may be pointed out in this connection that if the argument raised is valid that the implications of section 14 of the Act are inconsistent with the existence of such a rule, then the position would be that even the Bar Council would be incompetent td frame such a rule, for the future, under section 15 of the Act We would be reluctant to presume such an intention on the pari of the Legislature unless the conclusion be inevitable or irresistible, on the language employed, which is not the case here. The matter may also be looked at in another way. The power to direct ad interim suspension of the licence of an Advocate against whom an inquiry is pending, is really ancillary to the power of punishment, after final adjudication and therefore the High Court should be deemed to have that inherent power to pass such an order in an appropriate case. The old rule giving power to suspend ad interim, is relatable to a similar power of punishment vested in the High Court, under clause 8 of its Letters Patent, without there being an express provision enabling the High Court to pass an interlocutory order in disciplinary proceedings. It is clearly in the public interest that such a power should be available and neither any principle nor authority has been cited to negative such an implied power. Mr. Karam Elahi Chatihan also attempted to argue that the High Court had merely acted on the basis of the letters issued by this Court and had not applied its own mind to determine whether there was a prima facie case against the appellant, justifying his suspension from practice during the inquiry. This argument is untenable as the learned Judges, at more than one place, have expressed the opinion that this was an eminently fit case in which the power of suspension was called for. We have; therefore, reached the conclusion that the order passed by the High Court could not be objected to, on the legal plane. It must, however, be observed that such an order, preventing, as it does, an Advocate, from pursuing his profession and which has the effect of attaching a certain amount of odium to. his name as a legal practitioner, should be resorted to only in grave cases where the circumstances would call for immediate action and should not be passed as a mere routine measure. The harm done by an order of this kind, may be found later, to be impossible of. compensation; if, eventually. the Advocate is cleared of all blame. A good deal of circumspection has, therefore, to be exercised, before such an order is passed to the prejudice of a practising Advocate. In the instant case it has been brought to our notice that the appellant was suspended from practice on 14‑6‑63 and that for some reasons which do not appear from the record, no steps have been taken so far, by the Bar Council, to start an inquiry. This is, by no means, a satisfactory state, of affairs. An inquiry of this kind should not‑be allowed to keep on hanging for such a long time, specially when the Advocate has been placed under suspension and it is to be hoped that the inquiry will be set on foot with all expedition now. If so advised, the appellant can apply to the High Court for vacation of the order directing his ad interim suspension, in view of the long delay that has occurred, in bringing the inquiry to a conclusion. There is force in the contention raised that the High Court can even restore an Advocate to practice after he has been found guilty of misconduct, provided there is expression of genuine contrition on his part and his conduct for some time has been not open to exception. A fortiori, the case of an Advocate under suspension, against whom an inquiry is merely pending in respect of charges of misconduct, ma require to be looked at with a greater amount of sympathy and understanding. If the appellant makes out a proper case for relief before the High Court, we have no doubt that the matter will receive anxious consideration at the hands of the learned Judges. The appeal fails and is hereby dismissed, but in the circumstances, we make no order as to costs. A. H. Appeal dismissed.