Remedies against the order of punishment passed by the Disciplinary

Committee

Section 35 of Advocate Act 1961 provides for punishment for professional

misconduct or other misconduct. In exercise of powers under Section 35 of the Advocate Act,
on receipt of a complaint against an advocate or suo moto, if the State Bar Council has reason
to believe that any Advocate on its roll has been guilty of professional or other misconduct,
disciplinary proceedings may be initiated against him. The Disciplinary Committee of the
State Bar Council is empowered to inflict punishment including removal of his name from
the rolls of the Bar Council and suspending him from practice for a period deemed fit by it,
after giving advocate concerned and the Advocate-General of the state an opportunity of
hearing. However, an appeal against the order of the Disciplinary Committee may be
preferred to the bar Council of India under Section 37 and thereafter to the Supreme Court of
India against the order of the Bar Council of India under the section 38 of Advocate Act,
1961.
The Advocate Act provides remedies against the order of punishment. An advocate
aggrieved by the order of Disciplinary Committee can evoke the following remedies -

1) Review
2) Revision
3) Application for Stay
4) Appeal

1) Review :
It is provided in Section 44 of the Advocates Act,1961. By virtue of this Section the
Disciplinary Committee of Bar Council of its own motion or otherwise review any order,
within 60 days of the date of order passed by it under this Chapter. However, no such order of
Review of the Disciplinary Committee of a State Bar Council shall have effect, unless it has
been approved by the Bar Council of India.
According to Section 48-AA of the Bar Council of India or any of the its Disciplinary
Committee, may on its own motion or otherwise, review any order, within 60 days of the date
of that order, passed by it under the Advocate Act 1961.
 The procedure for making review application is given in chapter II, Part VII of the rules
of the Bar Council of India. It is in the form of petition duly signed and supported by an
affidavit accompanied by prescribed fee and certified copy of the order, complained of.

Rules For Review under Section 44 of the Act as follows:

(1) An application for review under Section 44 of the Act shall be in the form of a petition
duly signed and supported by an affidavit accompanied by the prescribed fee and filed within
60 days from the date of the order sought to be reviewed.

(2) Every such application shall be accompanied by :

(a) certified copy of the order complained of.
(b) five additional copies of the application, affidavit and the order; and
(c) if there are more respondents than one, as many additional true copies as may be
necessary.
(3) Every such application shall set out the grounds on which the Review is sought and
shall further state whether any proceeding in respect thereof was filled and is still pending or
the result thereof as the case may be.
(4) If a Disciplinary Committee of Bar Council does not summarily reject the application
under Section 44 of the Act, or wishes to exercise its powers under Section 44 suo motu, the
secretary of a Bar Council shall issue as nearly as maybe in the Form, notice to the parties
and to the Advocate-General concerned or the Additional Solicitor-General of India in the
case of the Bar Council of India.
(5) (1) If after the hearing referred to in rule 4, the Disciplinary Committee of a State Bar
Council does not dismiss the application, and decides that the application for review should
be allowed, the copy of the order along with the relevant record shall be sent to the bar
council of India for approval.
(2) If the Bar Council of India approves the order of the Bar Council, the Disciplinary
Committee of the State Bar Council shall communicate the order to the parties, if the bar
council of India does not approved it, the Disciplinary Committee of the State Bar Council
shall make its order dismissing the application and inform the parties.
(6) The decision of the Disciplinary Committee of the Bar Council of India on an
application for Review of its order shall be communicated to the parties.
(7) In the proceedings under this chapter, unless the disciplinary committee of the State Bar
Council or the Bar Council of India, as the case may be otherwise decides, the parties may
appear by the Advocate who shall file a Vakalatnama signed by the party.
2) Revision Section. 48-A (Amendment 1964 )

1) The Bar Council of India may, at anytime call for the record of proceeding under this
Act which has been disposed of by the State Bar Council or a Committee thereof, and from
which no appeal lies, for the purpose of satisfying itself as to the legality or propriety of such
disposal and may pass such orders in relation thereto as it may think fit.

2) No order which prejudicially affects any person shall be passed under this section
without giving a reasonable opportunity of being heard.

3) Application for Stay -

According to Section 40(1) of the Advocate Act,1961, an Appeal made under Section 37
or Section 38 shall not operate as a stay of the order appealed against, but the Disciplinary
Committee of India and the Supreme Court as the case may be, may for sufficient cause
direct the stay of such order on such terms and conditions as it may deem fit. Rule 29 of
chapter I Part VII of the Bar Council of India Rules provides that an application for stay shall
be accompanied by an affidavit and the fee prescribed by the Bar Council of India.

4)Appeal -

A)Appeal to the Bar Council of India

B)Appeal to Supreme Court

A) Appeal to the Bar Council of India -

In case the order of punishment has been passed by the Disciplinary Committee of
the State Bar Council, an Appeal may be preferred to the Bar Council of India under Section.
37 of the Advocates Act,1961. It provides that any person aggrieved by an order of the
Disciplinary Committee of a State Bar council made under Section 35, of the Advocate-
General of State may, within 60 days of the date of the communication of the order to him,
prefer an appeal to the Bar Council of India. Under Section 37(2), every such Appeal shall be
heard by the Disciplinary Committee of the Bar Council of India which may pass such order
including an order varying the punishment awarded by the Disciplinary Committee of the
State Bar Council thereon as it deemed fit ;
 Provided that no order of the Disciplinary Committee of the State Bar Council shall be
varied by the Disciplinary Committee of the Bar Council of India so as to prejudicially affect
the person aggrieved without giving him a reasonable opportunity of being heard.

B)Appeal to Supreme Court -

As per section 38 of the Advocates Act,1961 any person aggrieved by an order made
by the Disciplinary Committee of the Bar Council of India under Section 36 or Section 37 or
the Attorney-General of India or the Advocate-General of the State concerned, as the case
may be, may, within 60 days of the date on which the order is communicated to him, prefer
an appeal to the Supreme Court and the Supreme Court may pass such order including an
order varying the punishment awarded by the disciplinary committee of the Bar Council of
India thereon as it deems fit :

Provided that no order of the Disciplinary Committee of the bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving
him a reasonable opportunity of being heard.
The Bar Council of India has framed the rules as to the procedure to be observed in case of
Appeal. The Appeal memo in a prescribed form to be accompanied with the certified copy of
the order appealed against signed by the appellant with a prescribed fee within limitation
period. Delay can be condoned if satisfactorily explained and to be supported by an affidavit.
Thus, an appeal against the order passed by the Disciplinary Committee may be preferred to
the Bar council of India and an appeal against the order of the Bar council of India may be
preferred to the Supreme Court.

Case law

O.N. Mohindro vs District Judge, Delhi , AIR 1971, SC 107

In this case it was held that the appeal to the Supreme Court is not a restricted Appeal.
It is not an appeal on law alone but also on fact. Supreme Court must in all cases go into the
matter to satisfied itself that justice has been done by the Disciplinary Committee
Committees. The Supreme Court possesses under the constitution special power of review
and futher may pass any order to do full and effective justice under section 38 Supreme Court
has jurisdiction to pass in such appeals any order it deems fit.