ANS 3

In Indian Council of Legal Aid and Advice V. Bar Council of India (AIR 1995 SC 691) the Bar
Council of India by using the rule making power conferred under S.49 of the Advocates Act made a
rule prohibiting persons above 45 years to enroll as an Advocate. This rule was challenged as beyond
the powers of the Bar Council. The Supreme Court also accepted this agreement and struck down the
said rule as ultravires to S.49. The court held that the said section empowers the Bar Council to frame
rules only to regulate the legal profession and using this power the Bar Council cannot make rules
prescribing qualifications for enrolment.
In Sudeer v. Bar Council of India (AIR 1999 SC 1167) the Supreme Court held that the Bar Council
of India Rule prescribing one year pre-enrolment training apprenticeship, after the law degree, is ultra
vires the rule making power of the Bar Council of India. In this case also the Supreme Court held that
Bar Council cannot make rules prescribing qualification for the enrolment. Qualifications are already
prescribed in the Advocates Act.
Disqualification of enrolment
The following persons are disqualified to enrole as an Advocate (S.24A).
1. A person convicted for an offence involving moral turpitude.
2. A person convicted for an offence under untouchability (offences) Act, 1955.
3. A person dismissed or removed from government service on any charge involving moral
turpitude.
The disqualification ceases to have effect after the period of two years of his release from jail
or dismissal from service.
There is no disqualification for a person found guilty in the above said cases and who has
been given benefit under the provisions of the Probation of Offenders Act, 1958.
If an application for the enrolment is refused on any one of the above grounds of
disqualification, the State bar Council has intimate that fact stating the name, address, reasons for
refusal to all other State Bar Councils, thereby he shall be prevented from applying to the other State
Bar Councils for Enrolment.
A person cannot be permitted to carry on other profession along with legal profession. So, a
person with a law degree is carrying on the other profession is disqualified to enroll as an Advocate
(see Hani Raj L.Chulani V. Bar council of Maharashtra at P 66).
A full time salaried law officer is not entitled to enrole as an Advocate (Sathish Kumar
Sharma V. Bar Council of Himachal Pradesh (AIR 2001 SC 509).
Senior Advocate
S.16 of the Advocates Act classifies the Advocates into two types namely, Senior Advocates
and other Advocates.
The Supreme Court or a High Court shall designate an Advocate with his consent, as Senior
Advocate, if the court is of the opinion that by virtue of his ability, standing at the Bar or special
knowledge or experience in the law, he deserves such distinction. It is a honour and privilege
conferred on an Advocate.

By virtue of the pre-eminence which a senior Advocate enjoys in the profession, they carry
the greatest responsibilities and they should act as a model to the junior members of the profession. A
senior Advocate more or less occupies a position like a Queens counsel in England next after the
Attorney General, the Solicitor General and the State Advocate General.
Order-Iv Rule-2regarding the 1966 deals with the rules regarding the designating an Advocate
as an Senior Advocate in thee Supreme Court and their conditions of practice. Each High court has
framed their own rules of procedures for designating an Advocate as Senior Advocate.
The Bar Council of India has prescribed the following restrictions in the matter of practice of
a Senior Advocate.
1. A senior Advocate shall not file a vakalatanama or a memo of appearance or pleading or
application in any court or tribunal or before any person or authority mentioned in S.30 of the
Act.
2. A Senior Advocate in the Supreme Court shall not appear without an Advocate on record in
the Supreme Court.
3. A Senior Advocate in the High Court shall not appear Without an Advocate of the state roll.
4. He shall not accept instructions to draft pleading or affidavits, or to do any drafting work of
an analogous nature.
5. He shall not undertake conveyancing work of any kind what so ever.
6. He shall not directly accept a case from a client or instructions from his client to appear in
any court or tribunal.
7. He is free to make concessions or give undertakings in course of arguments on behalf of his
client on instructions from the junior Advocate.
When an Advocate is designated as a Senior Advocate, the registrar of the Supreme court or
the High court, as the case may be, shall communicate it to all the High courts and the secretary to the
State Bar Council and the Bar Council of India. In the communication, the Name of the Advocate and
the date on which he was designated as the Senior Advocate should be mentioned.
Advocate on Record
The Supreme Court rules of practice classifies the Advocates into three categories. They are
(i)Ordinary Advocates (ii) Senior Advocates (iii) Advocates on Record.
An Advocate should have the following qualifications to become as an Advocate on Record.
1. He must have completed 4 years of service as Advocate.
2. In addition to the four years of Service as Advocate he should work for one year with an
Advocate On Record, who has more than 10 years of service.
3. He should pass the Advocate On Record test conducted by the Supreme Court.
The test will be conducted on the following four subjects for hundred marks each namely
(i)Supreme Court Rules of practice and procedures, (ii) Drafting and Pleading (iii0 Accountancy for
the lawyers and (v) Leading cases. To pass this test one should get minimum 50% in each subjects and
in aggregate minimum 60%. ie. Totally 240 marks.
The Successful Advocates will be recognized as Advocate On Record by the Supreme Court
and their name will be entered in a separate register maintained for this purpose. Only Advocates on

Record alone is entitled to file cases in the Supreme Court. Every year they should submit their annual
income and expenditure account to the Supreme Court.
If an Advocate on Record is selected as the Senior Advocate then his name will be removed
from the register of the Advocate on Record and will be put in the register of the Senior Advocate.
Advocates Roll
According to S.17 of the Advocates Act, every State Bar Council shall prepare and maintain a
roll of Advocates. It shall contain two parts. First part containing the list of Senior Advocates and the
second part containing the other Advocates.
When more than one Advocate is enrolled in a single day, based on their seniority in age their
name will be entered in order.
In the Advocates roll the following details should be mentioned.
The name, Date of Birth, Permanent address, details about his education, The place where he
is interested to practice etc.
A person cannot enroll himself as an Advocate in more than one Bar Council. A person whose
name is registered in one state Roll can transfer his name in other State Roll on genuine grounds by an
application to the Bar Council of India. If there is no genuine reason for transfer or any disciplinary
proceedings are pendings against him then transfer application will be rejected.
The State Bar Council should send an authenticated copy of the Advocates Roll whenever the
new Advocates are included or names are removed from the roll.
Amicus Curiae
Amicus Curiae means friend of the court. He is the person who is voluntarily or on an
invitation of the court gives his opinion to the Court on a question of law in which the court is
doubtful.
Amicus Curiae is not an Advocate retained by any of the parties to the dispute. He is
altogether a stranger to the case. By virtue of his standing in the profession and the Experience in the
particular field of law the court may request to give his opinion on a particular issue .His views are
only an information or a suggestion to the court. An amicus curiae can express his views only with the
leave of the court. Normally he is not entitled to any remuneration of such work.
Lawyers Privileges
Privilege means special kind of right. An Advocate being the officer of the court and
belonging to the noble profession enjoys certain privileges inside and outside the court. The practice
of law itself is a privilege confered on lawyers. It is not open to anyone who wishes to practice law,
only lawyers alone can practice law. Following are some of the privileges.
1. A Lawyer has the privilege to represent his clients in the court

and tribunals.

2. A lawyer while going to the court to attend the case or while

exempted from arrest under civil process.

returning from the court is

3. A lawyer has a privilege of becoming judge, Attorney general,

General and government councils.

Solicitor General, Advocate

4. Since he is fighting for the justice, he is respected next to God.

Seven Lamps of Advocacy
Justice Abbot Parry qualifies the following qualities as Seven Lamps of Advocacy. They
are (i) Honesty (ii) Courage (iii) Industry (iv)wit, (v)Eloquence, (vi) Judgement and (vii) Fellowship.

1. Honesty: Honesty is the most important quality that an advocate should possess. His thoughts
words and deeds should have sincere co-relation to each other with genuineness. An Advocate should
be dependable reliable to everyone who seeks his advise and services. The uprightness, integrity and
honesty of the Advocate will increase his reputations and respect in the society.
2. Courage: It is the duty of an Advocate to fearlessly uphold the interest of his client by all fair
means without fear of any unpleasant consequences to himself or any other person. It is the
knowledge and the skill of the Advocate that gives him the necessary courage and confidence to
present the case fearlessly and to uphold the interest of the client. The knowledge and the skill can be
acquired and developed by mastery of facts, mastery of laws, mastery in drafting and presentations of
convincing arguments.
3. Industry: It means hard work. Hard works is absolutely necessary for an Advocate. His
knowledge of law should be up to date. He shall never be ignorant of the current law in force. He shall
get acquainted with the latest law by systematic study. If one ignores the law, the law will also ignore
him. That is why it is said that law is the jealous mistress.
4. Wit: Judges and lawyers have to deal with a variety of serious and important matters affecting
life and liberty of the people. So constant clash between them is common. Anxiety for a favourable
verdict on the part of the lawyers; and perpetual worry for the pursuit of the truth on the part of the
judges generate strain and tension. Occasional wit and humour, provoking a smile or laughter will
help them to ease the tension, and refresh themselves to sharpen their brain for the effective
discharges of the duties.
5.Eloquence: Eloquence means the fluency, force and style of using the language. Strong
vocabulary is one of the powerful weapon which an Advocate should posses. Words are his keys of
thoughts. Strong vocabulary gives him assurance, build his self confidence and build his personality.
Words must be employed with eloquence. The art of persuasive and impressive speaking will give the
desired result in his favour.
6.Judgement : It means the ability to come to a sensible conclusion and make wise decisions at
the relevant time in the proper way. It is on the basis of these conclusions he should employ the
necessary facts and the techniques in the case which he is engaged. This quality is necessary from the
beginning of filing the case till its final disposal. An Advocate must always anticipate all the possible
moves of the other side and must develop the necessary presence of mind , alertness and tact to cope
with any awkward situation of difficulty that may arise in the case.
7.Fellowship: In legal profession, one Advocate fights with another Advocate for justice before
the learned judge. There may be controversies and contradictions in their contention relating to the
case, but that shall never affect the fellowship. The Advocates should refer the opposite partys
Advocate as Learned Friend and the judge should be referred as Learned Judge. In order to
maintain the fellowship, the Bar Council of India has laid down certain rules to be observed as the
duty to colleagues.

ANS 4
Mr. Lokesh Dhawan vs Union Of India (Uoi) And Ors. on 11 August, 2003
Equivalent citations: 2004 IAD Delhi 165, AIR 2004 Delhi 26, 108 (2003) DLT
242, 2003 (70) DRJ 533
Author: B D Ahmed
Bench: B D Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. The petitioner is a chartered accountant. On the basis of a complaint made by the
respondent No. 4, the Council of the Institute of Chartered Accountants of India
(Respondent No. 2) (hereinafter referred to as a Council) referred the case to the

Disciplinary Committee to examine the question as to whether the petitioner was guilty of
any professional or other misconduct. There were three charges framed against the
petitioner. After examining the written submissions and hearing the petitioner, the
disciplinary committee in its report dated 17.01.2000 in paragraph 8.3 thereof recorded as
under:-"8.3 The Respondent admitted the first charge against him, which read as
follows:-"that the Respondent demanded and received large sums of money towards advance
payment and claimed expenses beyond the eligibility/entitlement as pert RBI guidelines and
failed to refund the unspent money."
The third charge was not examined by the disciplinary committee in view of the statement of
the complainant that it had no evidence to support the same. Thus, in the inquiry report the
disciplinary committee was concerned with the second charge only. In respect of this charge,
i.e. the second charge the disciplinary committee found the petitioner to be not guilty The
only charge which remained was charge No. 1 which, as aforesaid, had been admitted by the
petitioner. Accordingly, the disciplinary committee concluded its report dated 17.1.2000 as
under:"In conclusion, the Committee is of the opinion that the charge against the Respondent for
having demanded and received large sums of money towards advance payment, claiming
expenses beyond the eligibility/entitlement as per RBI guidelines and retaining the unspent
money for a considerable period of time, is proved beyond doubt. In the opinion of the
Committee, the Respondent has, therefore, committed "other misconduct" as defined in the
Code of Conduct and thus guilty under Section 21 read with Section 22 of the Chartered
Accountants Act, 1949.
The Committee is of the further opinion that rest of the charges against the Respondent are
not proved."
2. Based upon the admission of the petitioner, the disciplinary committee after holding the
inquiry in the prescribed manner reported the result of the same to the Council. The Council
considered the report of the disciplinary committee at its meetings held from 21st to 24th
June, 2001 at New Delhi. Although, the complainant bank (respondent No. 4) submitted its
written representation dated 29th May, 2001 on the report of the disciplinary committee
nobody appeared in its behalf before the Council for making oral submissions. The petitioner
submitted his written representation dated 12th June, 2001 and also appeared in person
before the Council on 23rd June, 2001 and made oral submissions. The Council, upon
considering the report of the disciplinary committee along with the written representation
dated 29.5.2001 of the respondent No. 4, the petitioner's representation dated 12th June,
2001 and also the oral submissions made by the petitioner before it, accepted the report of
the disciplinary committee and accordingly, found the petitioner to be guilty of "other
misconduct", in terms of Section 22 read with Section 21 of the Chartered Accountants Act,
1949 (hereinafter referred to as the said Act). By a letter dated 28th September, 2001 the
Council informed the petitioner of the same and also indicated to the petitioner that the
Council had decided to recommend to the High Court that the petitioner's name be removed
from the register of members for a period of three months. It was also indicated that the
detailed finding of the Council would be sent to the petitioner in due course.
3. Thereafter, the petitioner filed a petition before the Council on 3.6.2002 seeking a review
of the "decision" of the Council taken under Section 21(5) read with Section 21(3) of the said
Act on the report of the disciplinary committee. This review application dated 3.6.2002 filed
by the petitioner was rejected by a letter dated 9.10.2002 sent by the Council to the
petitioner. The rejection was in the following terms:4. It is at this stage that the petitioner has approached this Court by way of this writ petition
and has inter alia prayed that (a) the disciplinary proceedings pending against the petitioner

be quashed; (b) the"decision" taken by the Council that the petitioner has committed "other
misconduct" in terms of Section 21 and 22 of the said Act and the recommendation to this
Court to remove the petitioner from the register of members for a period of three months be
quashed; (c) the decision/letter dated 9.10.2002 whereby the Council rejected the
petitioner's review petition be quashed.
5. As is apparent from the aforesaid prayers the petitioner is aggrieved by the Council's
acceptance of the report of the disciplinary committee whereby the petitioner has been found
to be guilty of "other misconduct" and the Council's representation to this Court. Mainly, the
petitioner is aggrieved by the fact that his review application dated 3.6.2002 was rejected
without any consideration. In this context, the crucial question that arises for consideration
is:"Whether the Council, being a quasi-judicial authority, has power to review its own decision?
"
6. If it has, then the petitioner's review application could not have been thrown out by the
Council at the threshold. If it does not have the power to review then, the petitioner's review
application could not have been entertained in law and the decision of the Council
communicated vide letter dated 9.10.2002 would be valid. Thus, the root question is whether
the Council has power to review. It is an admitted position that the Act does not expressly
confer a power of review upon the Council. It would be relevant to note the provisions with
regard to the procedure in inquiries relating to misconduct of members of the Institute of
Chartered Accountants. Section 21, is the relevant provision and is as under:-"21. Procedure
in inquiries relating to misconduct of members of Institute (1) Where on receipt of
information by, or of a complaint made to it, the Council is prima facie of opinion that any
member of the Institute has been guilty of any professional or other misconduct, the Council
shall refer the case to the Disciplinary Committee, and the Disciplinary Committee shall
thereupon hold such inquiry and in such manner as may be prescribed, and shall report the
result of its inquiry to the Council.
(2) If on receipt of such report the Council finds that the member of the Institute is not guilty
of any professional or other misconduct, it shall record its finding accordingly and direct that
the proceedings shall be filed or the complaint shall be dismissed, as the case may be.
(3) If on receipt of such report the Council finds that the member of the Institute is guilty of
any professional or other misconduct, it shall record a finding accordingly and shall proceed
in the manner laid down in the succeeding sub-sections.
(4) Where the finding is that a member of the Institute has been guilty of a professional
misconduct specified in the First Schedule, * the Council shall afford to the member an
opportunity of being heard before orders are passed against him on the case, and may
thereafter make any of the following orders, namely:(a) reprimand the member;
(b) remove the name of the member from the Register for such period, not exceeding five
years, as the Council thinks fit:
Provided that where it appears to the Council that the case is one in which the name of the
member ought to be removed from the Register for a period exceeding five years or
permanently, it shall not make any order referred to in clause (a) or clause (b), but shall
forward the case to the High Court with its recommendations thereon.

(5) Where the misconduct in respect of which the Council has found any member of the
Institute guilty is misconduct other than any such misconduct as is referred to in sub-section
(4), it shall forward the case to the High Court with its recommendations thereon.
(6) On receipt of any case under sub-section (4) or sub-section (5), the High Court shall fix a
date for the hearing of the case and shall cause notice of the date so fixed to be given to the
member of the Institute concerned, the Council and to the Central Government, and shall
afford such member, the Council and the Central Government an opportunity of being heard,
and may thereafter make any of the following orders, namely:(a) direct that the proceedings be filed, or dismiss the complaint, as the case may be;
(b) reprim and the member;
(c) remove him from membership of the Institute either permanently or for such period as
the High Court thinks fit;
(d) refer the case to the Council for further inquiry and report.
(7) Where it appears to the High Court that the transfer of any case pending before it to
another High Court will promote the ends of justice or tend to the general convenience of the
parties, it may so transfer the case, subject to such conditions, if any, as it thinks fit to
impose, and the High Court to which such case is transferred shall deal with it as if the case
had been forwarded to it by the Council.
Explanation I:- In this section " High Court" means the highest civil court of appeal, not
including the Supreme Court, exercising jurisdiction in the area in which the person whose
conduct is being inquired into carries on business, or has his principal place of business at
the commencement of the inquiry:
Provided that where the cases relating to two or more members of the Institute have to be
forwarded by the Council to different High Courts, the Central Government shall, having
regard to the ends of justice and the general convenience of the parties, determine which of
the High Courts to the exclusion of others shall hear the cases against all the membeRs.
Explanation II: - For the purposes of this section " member of the Institute" includes a
person who was a member of the Institute on the date of the alleged misconduct although he
was ceased to be a member of the Institute at the time of the inquiry.
(8) For the purposes of any inquiry under this section, the Council and the Disciplinary
Committee shall have the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908, in respect of the following matters, namely:(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) the discovery and production of any document; and
(c) receiving evidence on affidavit."
A plain reading of the aforesaid provisions would indicate that upon a receipt of information
or upon a complaint made to it and where the Council is prima facie of the opinion that any
member of the Institute has been guilty of any professional or other misconduct, the Council
is required to refer the case to the disciplinary committee. Thereafter, the disciplinary
committee shall hold such inquiry and in such a manner as prescribed and shall report the

result of its inquiry to the Council. At this point, it would be pertinent to note that the
procedural aspects of looking into complaints and inquiry relating to misconduct of
members are prescribed in Regulations 12 to 18 of the Chartered Accountants Regulation,
1988. These regulations have been followed in the present case and I need not examine the
same in detail. After the disciplinary committee sends its report to the Council, the Council
examines the same under Section 21(2) of the said Act. If the Council finds that the member
is not guilty of any professional or other misconduct, it is required to record its findings
accordingly and direct that the proceedings be filed or the complaint be dismissed as the case
may be. However, if the Council finds that the member of the Institute is guilty of any
professional or other misconduct then, in view of the provisions of Section 21(3), the Council
is required to record the finding accordingly and is required to proceed in the manner laid
down in the succeeding sub-sections of Section 21 of the said Act. Where the finding
recorded by the Council is that the member is guilty of professional misconduct, the Council
is required, by the provisions of Section 21(4), to afford to the member an opportunity of
being heard before any orders are passed against him. The orders that may be passed against
the member in the case of professional misconduct include that of reprimanding the member
and removing the name of the member from the Register for a period not exceeding five
yeaRs. However, if the Council feels that the case before it is such where the name of the
members ought to be removed from the Register for a period exceeding five years or
permanently, then instead of making any order by itself, it is required, under the proviso
to Section 21(4) of the said Act, to forward the case to the High Court with its
recommendations thereon.
7. This case is not concerned with professional misconduct inasmuch as the petitioner has
been found to be guilty of "other misconduct". As such, Section 21(4) would have no
applicability in the present case. Yet, it was necessary to note the same to understand the
scheme of the Act.
8. In terms of Section 21(5), where the case is one of "other misconduct, ", the Council is
required to forward the case to the High Court with its recommendation thereon. In other
words, the Council merely records a finding and forwards the case with its recommendation.
It does not take any decision nor does it pass any ordeRs. This aspect will have a material
significance as will be indicated hereinbelow.
9. On receipt of the recommendation, the High Court under Section 21(6) is required to fix a
date for hearing of the case and shall cause notice of the date so fixed to be given to the
member concerned, the Council and to the Central Government and it is required to afford
such member, the Council and the Central Government an opportunity of being heard. After
such hearing the High Court may make any of the four types of orders mentioned in Section
21(6) of the said Act. It may direct the proceedings to be filed, dismiss the complaint,
reprimand the member, remove him from membership of the Institute either permanently
or for such period as the High Court thinks fit or it may refer the case to the Council for
further inquiry and report. In the present case, the Council has already made the
recommendation and has filed the same before this Court. It is clear from the above that
there is no express provision for review of the findings of the Council or the
recommendations made by it. This, as indicated above, is an admitted position.
10. This being the case, Mr. Arvind Nigam, the learned counsel for the Petitioner has
contended that the Council has an inherent power of review. In this context, there are two
aspects to be considered in the present case. Firstly, whether any such power inheres in the
Council. And secondly, whether the finding and the recommendation made by the Council
thereupon can be construed to be an order or decision capable of being reviewed.
11. I take up the first question assuming that the finding and recommendation is an order or
decision. It is well settled that review is a creative of statute. In the case of Patel Narshi

Thakershi and Others v. Shri Pradyumansinghji Arjunsinghji, , the Supreme Court (in
paragraph 4) held as under:"It is well settled that the power to review is not an inherent power. It must be conferred by
law either specifically or by necessary implication. No provision in the Act was brought to
notice from which it could be gathered that the government had power to review its own
order."
Again in the case of Dr. (Smt. ) Kunkesh Gupta v. Management of Hindu Kanya
Mahavidyalaya, Sitapur (U.P.) & Others, , the Supreme Court categorically held that:"11. It is now well established that a quasi-judicial authority cannot review its own order,
unless the power of review is expressly conferred on it by the statute under which it derives
its jurisdiction."
In Kewal Chand Mimani (D) By LRs. v. S.K. Sen and Others, , the Supreme Court reiterates
the aforesaid principles following the decision of Patel Narshi Thakershi's case (supra) as
follows:"In any event, law is well settled on this score that the power to review is not any inherent
power and it must be conferred by law either specifically or by necessary implication. In this
context, reference may be made to the decision in Patel Narshi Thakershi v.
Pradyumansinghji Arjunsinghji."
11.1. So, it is clear that insofar as a quasi-judicial authority is concerned, it has no inherent
power to review its own decision. The power to review must be conferred on it by statute,
expressly or by necessary implication. In the present case, there is no such conferment of
power of review by the said Act on the Council.
11.2. Faced with this, Mr. Nigam placed three decisions of the Supreme Court in an attempt
to establish his contention that despite these well settled principles, there are still some
situations where a review could be possible and that the present case was one such situation.
Mr. Nigam firstly relied on the decision of the Supreme Court in Grindlays Bank Ltd. v.
Central Government Industrial Tribunal and Others, 1980 (Supp) SCC 420 and in particular
paragraph 13 thereof. It is Mr. Nigam's contention that there are two kinds of powers to
review - (a) substantive review; and (b) procedural review. According to him procedural
review is inherent in any Court or tribunal. Substantive review is a creature of statute. It is
his contention that the Supreme Court decision in Patel Narshi Thakershi's case (supra) and
others following it are only with respect to substantive review and do not touch upon
procedural review. To examine this contention of Mr. Nigam, it is necessary to set out
paragraph 13 of the Grindlays Bank Ltd. judgment (supra):"13. We are unable to appreciate the contention that merely because the ex parte award was
based on the statement of the manager of the appellant, the order setting aside the ex parte
award, in fact, amounts to review. The decision in Patel Narshi Thakershi v.
Pradyumansinghji Arjunsinghji1 is distinguishable. It is an authority for the proposition that
the power of review is not an inherent power, it must be conferred either specifically or by
necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a
distinction between procedure and powers of the Tribunal under the Act. While the
procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act,
the powers of civil court conferred upon it are clearly defined. The question whether a party
must be heard before it is proceeded against is one of procedure and not of power in the
sense in which the words are used in Section 11. The answer to the question is, therefore, to
be found in sub-section (1) of Section 11 and not in sub-section (3) of Section 11.

Furthermore, different considerations arise on review. The expression 'review' is used in the
two distinct senses, namely (1) a procedural review which is either inherent or implied in a
court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by
it, and (2) a review on merits when the error sought to be corrected is one of law and is
apparent on the face of the record. It is in the latter sense that the court in Patel Narshi
Thakershi case held that no review lies on merits unless a statute specifically provides for it.
Obviously when a review is sought due to a procedural defect, the inadvertent error
committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its
process, and such power inheres in every court or Tribunal."
Just as the decision in Patel Narshi Thakershi's case (supra) was held to be distinguishable in
the Grindlay Bank Ltd's case (supra), the latter is distinguishable in the facts of the present
case. From an examination of paragraph 13 of the Grindlays Bank's decision (supra), it is
apparent and clear that the inherent power of review is in relation to the "Court or
tribunal."By no stretch of imagination can the Council be equated with the "Court or
tribunal." The question is with regard to the existence of power of review in the case of a
quasi-judicial authority and not in the case of judicial authorities. Courts and Tribunal
exercise full judicial functions and poweRs. They have inherent power of review used in both
senses. Quasi-judicial authorities have no inherent power of review used in either sense. In
any event no procedural defect or inadvertent error is sought to be cured in the present case.
The Review application was sought on the merits and on facts and would be a case of
substantive review. Thus, Mr. Nigam cannot draw any support from the decision in
Grindlays Bank Ltd's case (supra).
11.3. The next case relied upon by Mr. Nigam was the decision of the Supreme Court
in Indian Bank v. Satyam Fibres (India) Pvt. Ltd. , . In particular he relied upon the
observations contained in paragraph 20 of the said decision to the following effect:"This plea could not have been legally ignored by the Commission which needs to be
reminded that the authorities, be they constitutional, statutory or administrative, (and
particularly those who have to decide a lis) possess the power to recall their judgments or
orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus
nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no
man (Fraus et dolus nemini patrocinari debent)."
However, it must be noticed that the aforesaid observations were with regard to cases of
fraud and it is well known that fraud vitiates everything. The present case is not one of fraud.
So even these observations would be of no help to the petitioner. In any event, these
observations have been explained and qualified in paragraphs 22 and 23 of the said decision
itself which are set out as under:"22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to
recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party
to the suit or proceedings, the court may direct the affected party to file a separate suit for
setting aside the decree obtained by fraud. Inherent powers are powers which are resident in
all courts, especially of superior jurisdiction. These powers spring not from legislation but
from the nature and the constitution of the tribunals or courts themselves so as to enable
them to maintain their dignity, secure obedience to its process and rules, protect its officers
from indignity and wrong and to punish unseemly behavior. This power is necessary for the
orderly administration of the court's business.
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the
court and also amounts to an abuse of the process of court, the courts have been held to have
inherent power to set aside an order obtained by fraud practiced upon that court. Similarly,
where the court is misled by a party or the court itself commits a mistake which prejudices a

party, the court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v.
Mohanlal Goenka3; Gajanand Sha v. Dayanand Thakur4; Krishnakumar v. Jawand Singh5;
Devendra Nath Sarkar v. Ram Rachpal Singh6; Saiyed Mohd. Raza v. Ram Saroop7; Bankey
Behari Lal v. Abdul Rahman8; Lakshmi Amma Chacki Amma v. Mammen Mammen.9) The
court has also the inherent power to set aside a sale brought about by fraud practiced upon
the court (Ishwar Mahton v. Sitaram Kumar10) or to set aside the order recording
compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh11; Tara
Bai v. V.S. Krishnaswamy Rao.12)"
From the above passages, it is apparent that the reference is to be the judiciary in India and
to Courts and tribunals. Thus, the inherent power that is being referred to is the Court's
inherent power to recall its order. In this context, the crucial phrases contained in the
aforesaid passages are:"inherent powers are powers which are resident in all courts, especially of superior
jurisdiction. These powers sprig not from legislation but from the nature and the
constitution of the tribunals or courts themselves so as to enable them to maintain their
dignity, secure obedience of its process and rules, protect its officers from indignity and
wrong and to punish unseemly behavior. This power is necessary for the orderly
administration of the court's business."
Surely, such powers cannot be construed as having been conferred on in the Council which is
neither a Court nor a tribunal. Accordingly, the decision of the Supreme Court in Indian
Bank (supra) also does not help the petitioner.
11.4. Lastly, on this question of the inherent power to review, the learned counsel for the
petitioner Mr. Nigam has placed reliance on the decision of the Supreme Court in the case
of Budhia Swain and Others v. Gopinath Deb and others, . In particular Mr. Nigam placed
reliance on paragraphs 6 to 8 thereof which read as under:"6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or
courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. 1 Vide para 23, this Court
has held that the courts have inherent power to recall and set aside an order.
(i) obtained by fraud practiced upon the court,
(ii) when the court is misled by a party. Or
(iii) when the court itself commits a mistake which prejudices a party.
In A.R. Antulay v. R.S. Nayak2 (vide para 130), this Court has noticed motions to set aside
judgments being permitted where
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been
served at all and was shown as served or in ignorance of the fact that a necessary party had
died and the estate was not represented,
(ii) a judgment was obtained by fraud,
(iii) a party has had no notice and a decree was made against him and such party approaches
the court for setting aside the decision ex debito justitiae on proof of the fact that there was
no service.

7. In Corpus Jurisdiction Secundum (Vol. XIX) under the chapter "Judgment -- Opening and
Vacating" (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The
grounds on which the courts may open or vacate their judgments are generally matters
which render the judgment void or which are specified in statutes authorising such actions.
Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating
it at least if the invalidity is apparent on the face of the record. Fraud or collusion in
obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in
violation of an agreement not to enter a judgment may be vacated on that ground. However,
in general, a judgment will not be opened or vacated on grounds which could have been
pleaded in the original action. A motion to vacate will not be entered when the proper
remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment
may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the
judgment or submits to it, waiver or estoppel results.
8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction
and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been
served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for reopening the
proceedings or vacating the judgment was available to be pleaded in the original action but
was not done or where a proper remedy in some other proceeding such as by way of appeal
or revision was available but was not availed. The right to seek vacation of a judgment may
be lost by waiver, estoppel or acquiescence."
Mr. Nigam contends that the facts of the present case fall under the category of cases
mentioned in paragraph 8(i) of the aforesaid decision. In other words, it is his contention
that the present case is one where proceedings culminated into an order and the proceedings
themselves suffer from the inherent lack of jurisdiction and such lack of jurisdiction is
patent. Therefore, according to him, the Council had the power to recall the finding as well as
the recommendation made to the High Court.
11.5. There are several reasons as to why this submission on behalf of the petitioner is
untenable. First of all, it is quite clear from paragraphs 6 to 8 of the aforesaid judgment itself
that the power to recall that was being considered was in respect of tribunals or Courts. It
was not concerned with the power of recall in the context of a quasi-judicial authority. That
aspect has been dealt with and settled by the Supreme Court in the case of Dr. (Smt. )
Kuntesh Gupta's case (supra) following the three Judge Bench decision of the Supreme Court
in the case of Patel Narshi Thakershi (supra). A distinction must be drawn between the
inherent powers of Courts or tribunals on the one hand and those of quasi-judicial
authorities. While, tribunals and Courts have inherent powers, quasi-judicial authorities
have only those powers which are conferred by statute. As such, they do not have any power
to review unless specifically conferred by statute. As indicated above, the decision in Budhia
Swain's case (supra) will not apply to the facts and circumstances of the present case
inasmuch as the Council has admittedly exercised quasi-judicial functions and is not a Court
of tribunal exercising judicial authority and functions.

11.6. Secondly, in any event, it cannot be said that there was any lack of jurisdiction. The
argument on behalf of the petitioner is that the TA/HA bills of the petitioner were based on
the Reserve Bank of India's Circular. Clause 2(v) of the Circular reads as under:-"(v) In case
of dispute between the auditors and the bank regarding settlement of their bills, the
Chairman of the bank shall be the final authority to decide the claiMs. The Chairman has to
satisfy himself that the actual expenses have been incurred by a particular auditor and the
claims are settled keeping in view the RBI guidelines."
According to the learned counsel for the petitioner, there was a bona fide dispute between
the Bank (Respondent No. 4) and the auditors, i.e. the petitioner firm. Therefore, the dispute
had to be settled by the Chairman, without which no money can be said to be due by either
party. In the absence of satisfaction of this pre-condition, it is contended that the disciplinary
committee and the Council proceeded on facts which were non-existent and, therefore, the
entire proceedings lacked jurisdiction.