PETITIONER:
AN ADVOCATE
Vs.
RESPONDENT:
B.B. HARADARA & ORS.
DATE OF JUDGMENT29/09/1988
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
RAY, B.C. (J)
CITATION:
1989 AIR 245 1988 SCR Supl. (3) 361
1989 SCC Supl. (2) 25 JT 1988 (4) 376
1988 SCALE (2)1362
ACT:
Advocate's Act--Sec. 38 Professional misconduct standard
of proof--Required of--Section 35--Procedure to be followed
at the inquiry by Bar Council.
HEADNOTE:
The appellant is an Advocate. Gautam Chand was one of
his old clients. The complainant-Respondent No. l engaged
the appellant on being introduced by Gautam Chand to file a
Suit against Shri S. Anantaraju for recovery of a sum of
Rs.30,098 with Court costs and interest in the Court of City
Civil Judge at Bangalore. The appellant passed on the papers
to his junior advocate to file the Suit which he did. The
complainant's allegation is that the matter in dispute in
the suit had not been settled at all and the appellant
without the knowledge and without his instructions filed a
memo in the Court to the effect that the matter has been
settled out of Court and accordingly got the suit dismis-
sed and also received half of the institution court fee;
about which the complainant was not aware, nor was he
informed by the appellant. The complainant's allegation is
that he was not informed about the dates of hearing of the
suit; when inquired he was simply told that the case is
posted for filing written-statement where his presence was
not neces- sary. When nothing was heard by the complainant
from the appellant about the progress of his suit, he
personally made inquiries and came to learn to his great
surprise that the suit in question had in fact been
withdrawn as settled out of Court.
The version of the appellant Advocate is that Gautam
Chand, his old client, had business dealings with the
plaintiffs, Haradara (Complainant) and the defendant
Anantaraju. Anantaraju had also executed an agreement on
9.8.80 to sell his house property to Gautam Chand. He
received earnest money amounting to Rs.35,000 from Gautam
Chand. Anantaraju however did not execute the sale deed
within the specified time. Gautam Chand approached the
appellant for legal advice. The appellant caused the issue
of notice to Anantaraju calling upon him to execute the sale
deed. A notice was also issued on behalf of the complainant
calling upon the defendant Anantaraju demanding certain
amounts due on 3 self bearer cheques amounting to
PG NO 362
Rs..30,098 issued by him in course of their mutual
transactions.
Gautam Chand and the complainant were friends having no
conflict of interests Gautam Chand instructed the appellant
and his junior Ashok that he was in possession of the said
cheques issued by Anantaraju and that no amount was actually
due from Anantaraju to Haradara Complainant. Gautam Chand
desired Anantaraju to execute the sale deed. Anantaraju
executed the sale deed on 27.11.81 in favour of Gautam
Chand, even though an order of attachment before judg- ment
in respect of the said property was in existence. Consequent
on the execution of the sale deed, the object of the suit
was achieved. The complainant did not at any time object. In
this back ground, the appellant had reasons to believe the
information re: settlement of dispute conveyed by the three
together on 9.12.81. Acting on the said informa- tion, the
appellant asked Ashok his erstwhile junior to take steps to
withdraw the suit, which he did on 10.12.8l as per
instructions received from the appellant noted on the docket
of the brief.
The state Bar Council, called for the comments of the
appellant relating to the complaint. No charge was framed
specifying the nature and content of the professional
misconduct attributed to the appellant. Nor were any issues
framed or prints for determination formulated. Instead
thereof the Bar Council proceeded to record evidence. As the
case could not be concluded within the time limit, the
matter came to be transferred to the Bar Council of India.
The Bar Council off India addressed itself to the three
questions, viz.
(i) Whether the complainant was the person who entrusted the
brief to the appellant and whether the brief was entrusted
by the complainant to the appellant.
(ii) Whether report of settlement was made without
instructions or knowledge of the complainant?
(iii) Who was responsible for reporting settlement and
instructions of the complainant ?
The Disciplinary Committee of the Bar Council of India
after considering the matter found appellant guilty of
professional misconduct and suspended him for practising his
profession for 3 years on the charge of having withdrawn a
suit (not settled) without the instruction of the clients.
PG NO 363
The appellant has filed the appeal u,s 38 of the
Advocates Act. The following questions arose for
consideration by this Court.
(i) Whether a specific charge should have been framed
apprising the appellant of the true nature and content of
the professional misconduct ascribed to him:
(ii) Whether the doctrine of benefit of doubt and the need
of establishing the basic allegations were present in the
mind of the Disciplinary Authority in recording the finding
of guilt or in determining the nature and extent of the
punishment inflicted on him;
(iii) Whether in the absence of the charge and finding of
dishonesty against him the appellant could be held guilty of
professional misconduct even on the assumption that he had
acted on the instructions of a person not authorised to act
on behalf of his client if he was acting in good faith and
in a bona fide manner. Would it amount to lack of prudence
or non-culpable negligence or would it constitute
professional misconduct.
Disposing of the appeal, the Court,
HELD: That the appellant was not afforded reasonable and
fair Opportunity of showing cause inasmuch as he was not
apprised of the exact content of the professional misconduct
attributed to him and was not made aware of the precise
charge he was required to rebut. [376E-F]
That in recording the finding of facts on the three
questions. referred to above. the applicability of the
doctrine of benefit of doubt and the need for established
the facts beyond reasonable doubt were not realized. Nor did
the Disciplinary Committee consider the question as to
whether the- facts established that the appellant was acting
with bona fides or mala fides whether the appellant was
acting with any oblique and dishonest motive. whether there
was any mens rea; whether the facts constituted negligence
and if so whether it constituted culpable negligence. Nor
has the Disciplinary Committee considered the question as
regards the quantum of punishment in the light of the
aforesaid considerations and the exact nature of the
professional misconduct established against the appellant.
[376F-H; 377A]
The Court, in view of the fact that "the matter is one
of the ethics of the profession which the law has entrusted
to the Bar Council of India" and it is in their opinion, "a
case which must receive due weight" did not consider it
PG NO 364
appropriate to examine the matter on merits without first
having the opinion of the Bar Council of India. [377D]
Remanding the matter to the Bar Council of India the
Court directed it to consider whether it would constitute an
imprudent act, an unwise act, a negligent act or whether it
constituted negligence and if so a culpable negligence, or
whether it constituted a professional misconduct deserving
severe punishment, even when it was not established or at
least not established beyond reasonable doubt that the
concerned Advocate was acting with any oblique or dishonest
motive or with mala fides. [377H; 378A]
L.D. Jaisinghani v. Naraindas N. Punjabi, [1976] 3
S.C.R. 354 and Re: M. v. Distt. Judge Delhi, [1956] S.C.R.
P. 811(814), referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 316 ot
1987.
From the Judgment and Order dated 31.12.1986 of the
Disciplinary Committee of the Bar Council of India in B.C.I.
Transfer Case No. 407 of 1985.
S.S. Javali and Raju Ramachandra for the Appellant.
Ravinder Bhat, N. Ganapathy and Promod Swarup for the
Respondents .
The Judgment of the Court was delivered by
THAKKAR, J. A hast of questions of seminal significance,
not only for the Advocate who has been suspended from
practising his profession for 3 years on the charge of
having withdrawn a suit (as settled) without the
instructions from his client, but also for the members of
the legal profession in general have arisen in this appeal:
1. Appeal under section 38 of the Advocates Act, 1961.
(1) Whether a charge apprising him specifically of the
precise nature and character of the professional misconduct
ascribed to him needs to be framed?
(2) Whether in the absence of an allegation or finding
of dishonesty or mens rea a finding of guilt and a
punishment
PG NO 365
of this nature can be inflicted on him?
(3) Whether the allegations and the finding of guilt
require to be proved beyond reasonable doubt?
(4) Whether the doctrine of benefit of doubt applies?
(5) Whether an Advocate acting bona fide and in good
faith on the basis of oral instructions given by some one
purporting to act on behalf of his client, would be guilty
of professional misconduct or of an unwise or imprudent act,
or negligence simpliciter, or culpable negligence punishable
as professional misconduct?
The suit was a suit for recovery of Rs.30,098 (Suit No.
65/81 on the file of Additional City Civil Judge,
Bangalore). It appears that the complainant had entrusted
the brief to the appellant which he in his turn had
entrusted to his junior colleague (respondent No. 2 herein)
who was attached to his Office and was practising along with
him at his office at the material time. At the point of time
when the suit was withdrawn, respondent No. 2 was practising
on his own having set up his separate office. On the docket
of the brief pertaining to the suit, the appellant made an
endorsement giving instructions to withdraw the suit as
settled. A sketch was drawn on the back of the cover to
enable the person carrying the brief to the junior colleague
to locate his office in order to convey the instructions as
per the endorsement made by the appellant. The allegations
made by the complainant against the appellant are embodied
in paragraphs 1 & 2 of his complaint:
1. The petitioner submits that he entrusted a matter to
the Second Respondent to file a case against Shri S.
Anantaraju for recovery of a sum of Rs.30,098 with Court
costs and current interest in Case No. O.S. 1965/81 on the
file of the City Civil Judge at Bangalore. The Petitioner
submits that the said suit was filed by the first respondent
who was then a Junior of the Second respondent. The
petitioner submits that the matter in dispute in the suit
was not settled at all and the first respon- dent without
the knowledge and without the instructions of the petitioner
has filed a memo stating that the matter is settled out of
Court and got the suit dismissed and he has also received
half of the institution court fee within l0 days since the
PG NO 366
date of the disposal of the suit. The petitioner submits
that he has not received either the suit amount or the
refund of court fee and he is not aware of the dismissal of
the suit as settled out of court.
2. The petitioner submits that when the case was posted
for filing of written statement itself the first respondent
has filed such a memo stating that the suit was settled out
of Court. The petitioner submits that in fact, the
respondents did not even inform the petitioner about the
dates of hearing and when the petitioner asked the dates of
hearing the respondents informed the petitioner stating that
his presence is not required in the Court since the case
was posted for filing of written statement and therefore .
the petitioner did not attend the Court on that day. The
petitioner submits that when he enquired about the further
date of hearing the respondents did not give the date and
said that they would verify the next date of hearing since
they have not attended the case since the case was posted
for filing written statement by the defendant. The
petitioner submits that when he himself went to the Court
and verified he found to his great surprise that the suit is
dismissed as settled out of court and latter learnt that
even the half of the institution court fee is also taken by
the first respondent within 10 days.
The version of the appellant may now be unfolded:
(i) One Gautam Chand (R.W.3) has been a longstanding
Client of the appellant. Gautam Chand had business dealing
with the plaintiff Haradara and the Defendant Anantaraju.
Besides. Anantaraju executed an agreement dated 9.8.1980 to
sell his house property to Gautam Chand. He received earnest
money in the sum of rupees 35,000 from Gautam Chand.
Anantaraju, however, did not execute the sale deed within
the stipulated period and during the extended period It was
in these circumstances that Gautam Chand (RW 3) approached
the appellant for legal advice.
(2) It is the common case of parties that Gautam Chand
introduced the complainant Haradara to the appellant and his
colleague Advocate respondent No. 2
(3) The appellant caused the issue of notice dated
1.6.1981 (Ex. R/15) on behalf of Gautam Chand addressed to
PG NO 367
the seller Anantaraju calling upon him to execute the sale
dead. On the same date, a notice was separately issued on
behalf ot the complainant Haradara addressed to Anantaraju
demanding certain amounts due on the three `self’ bearer
cheques aggregating, Rs.30,098 issued by Anantaraju in
course of their mutual transactions. This notice was issued
by the Advocate respondent No.2 acting on behalf of the
complainant Haradara.
(4) Gautam Chand (RW 3) and Haradara (PW 1) were
friends. Anantaraju was their common adversary. There was no
conflict of interests as between Gautam Chand and Haradara.
Gautam Chand instructed the appellants and his colleague
respondent No. 2. Ashok, that he was in possession of the
said cheques issued by Anantaraju and that no amount was
actually due from Anantaraju to the complainant Haradara.
Gautam Chand was desirous of stops to induce Anantaraju to
execute the sale deed in his favour.
(5) A suit being O.S. No. 1965 of 1981 was instituted on
behalf of the complainant Haradara claiming on amount of
Rs. 30,000 and odd, from the defendant Anantaraju on the
basis of the aforesaid cheques. It was instituted on
30.6.1981. An interlocutary application was moved on behalf
of Haradara by respondent No. 2 as his Advocate seeking the
attachment before judgment of the immovable property
belonging to the defendant Anantaraju. The property was in
fact the subject of an agreement to sell between Anantaraju
and Gautam Chand (RW 3) The Court initially declined to
grant an order of attachment. In order to persuade the
Court, certain steps were taken through the said Gautam
Chand. He caused the Publication of a notice stating that
the property in question was the subject matter of an
agreement between Anantaraju and himself and it should not
be dealt with by anyone. The publication of this notice was
relied upon subsequently on behalf of the complainant
Haradara by his advocate (respondent No. 2). Ashok in
seeking an order of attachment. The Court accepted his
submissions and passed the order of attachment.
(6) Subsequently the defendant Anantaraju executed the
sale deed dated 27th Nov., 1981 in favour of Gautam Chand.
The object of the suit was achieved. The sale deed was in
PG NO 368
fact executed during the subsistence of the order of
attachment concerning the same property. The plaintiff
Haradara has not objected to it at any time. Consistently,
the appellant had reasons to believe the information of
settlement of dispute conveyed by the three parties together
on 9.12.1981.
(7) Gautam Chand (RW 3) and the complainant Haradara
acted in interest and scoured the attachment of property
which was the subject matter of an agreement to sell in
favour of Gautam Chand. The suit instituted in the name of
the complainant Haradara was only for the benefit of Gautam
Chand by reference to his interest in the property.
(8) The appellant conveyed information of the settlement
of dispute by his note made on the docket. He drew a diagram
of the location of residence of the respondent No. 2 Ashok
Advocate. (Ex. R-1A at page 14 Additional Documents). The
papers were delivered to respondent No. 2 Ashok Advocate by
Gautam Chand (PW 3).
(9) After satisfying himself, respondent No. 2 Ashok
advocate appeared in Court on 10.12.81 and filed a Memo
prepared in his handwriting recording the fact of settlement
of dispute and seeking withdrawal of the suit. The Court
passed order dated 10.12.1981 dismissing the suit, O.S. No.
1965 of 1981.
(10) Even though the plaintiff Haradara gained knowledge
of the disposal of suit, he did not meet the appellant nor
did he address him for over 1-1/2 years until May, 1983. He
did not also immediately apply for the restoration of suit.
An application for restoration was filed on the last date of
limitation on 11.1.1982. The application Misc. 16 of 1982
was later allowed to be dismissed for default on 30.7.1982.
It was later sought to be revived by application Misc. No.
581 of 1982. Necessary orders were obtained on 16.7.1988.
Thus Misc. 16 of 1982 (Application for restoration of suit)
is pending in Civil Court.
On a survey of the legal landscape in the area of
disciplinary proceedings this scenario emerges:
(1) In exercise of powers under section 35 contained in
Chapte V entitled “conduct of Advocates”, on receipt of
PG NO 369
a complaint against an Advocate (or suo motu) if the State
Bar Council has `reason to believe’ that any Advocate on its
role has been guilty of “professional or other misconduct”.
Disciplinary proceeding may be initiated against him.
(2) Neither section 35 nor any other provision of the
Act defines the expression’ legal misconduct’ or the
expression `misconduct’ .
(3) The Disciplinary Committee of the State Bar Council
is authorised to inflict punishment, including removal of
his name from the rolls of the Bar Council and suspending
him from practise for a period deemed fit by it, after
giving the Advocate concerned and the ‘Advocate General’ of
the State an opportunity of hearing.
(4) While under section 42(1) of the Act the
Disciplinary Committee has been conferred powers vested in a
Civil Court in respect of certain matters including
summoning and enforcing Attendance of any person and
examining him on oath, the Act which enjoins the
Disciplinary Committee to “afford an opportunity of hearing’
(Vide Sec. S) to the Advocate does not prescribe the
procedure to be followed at the hearing.
(5) The procedure to be followed in an Enquiry under
Section 35 is outlined in Part VII of the Bar Council of
India Rules (1) made under the authority of section 60 of
the Act.
(6) Rule 8(1) of the said Rules enjoins the Disciplinary
Committee to hear the concerned parties that is to say the
complainant and the concerned Advocate as also the Attorney
General or the Solicitor General or the Advocate General. It
also enjoins that if it is considered appropriate to take
oral evidence the procedure of the trial of civil suits
shall as far as possible be followed (2).
At this juncture it is appropriate to articulate some
basic principles which must inform the disciplinary
proceedings against members of the legal profession in
proceedings under Section 35 of the Advocates Act, read with
the relevant Rules:
1. Published in Gazette of India on September 6, 1975 in
Part III Section (pages 1671 to 1697).
PG NO 370
(i) essentially the proceedings are quasi-criminal in
character inasmuch as a Member of the profession can be
visited with penal consequences which affect his right to
practice the profession as also his honour; under Section
35(3)(d) of the Act, the name of the Advocate found guilty
of professional or other misconduct can be removed from the
State Roll of Advocates. This extreme penalty is equivalent
of death penalty which is in vogue in criminal jurisprudence
The Advocate on whom the penalty of his name being removed
from the roll of Advocate is imposed would be deprived of
practising the profession of his choice, would be robbed of
his means of livelihood, would be stripped of the name and
honour earned by him in the post and is liable to become a
social apartheid. A disciplinary proceeding by a statutory
body of the Members of the profession which is statutorily
empowered to impose a punishment including a punishment of
such immense proportions in quasi-criminal in character;
(ii) as a logical corollary it follows that the
Disciplinary Committee empowered to conduct the enquiry and
to inflict the punishment on behalf of the body, in forming
an opinion must be guided by the doctrine of benefit of
doubt and is under an obligation to record a finding of
guilt only upon being satisfied beyond reasonable doubt.
It would be impermissible to reach a conclusion on the basis
preponderence of evidence or on the basis of surmise,
conjucture or suspicion. It will also be essential to con-
sider the dimension regarding mens rea.
This proposition is hardly open to doubt or debate
particularly having regard to the view taken by this Court
in L.D. Jaisinghani v. Naraindas N. Punjubi, [1976] 3 SCR
354 wherein Ray, CJ., speaking for the Court has observed:
`In any case. we are left in doubt whether the
complainant’s version. with which he had come forward with
considerable delay was really truthful. We think that, in a
case of this nature, involving possible disbarring of the
advocate concerned, the evidence should be of a character
which
2. Rule 8(1) “The Disciplinary Committee shall hear the
Attorney General or the Solicitor General of India or the
Advocate General, as the case may be or their Advocate, and
parties or their Advocate, if they desire to be heard, and
determine the matter on documents and affidavits unless it
is of the opinion that it should be in the interest of
justice to permit cross examination of the deponents or to
take oral evidence, in which case the procedure for the
trial of civil suits, shall as far as possible be followed.”
PG NO 371
should leave no reasonable doubt about guilt. The
Disciplinary Committee had not only found the appellant
guilty but had disbarred him permanently.”
(Emphasis added).
(iii) in the event of a charge of negligence being
levelled against an Advocate, the question will have to be
decided whether negligence simpliciter would constitute
misconduct. It would also have to be considered whether the
standard expected from an Advocate would have to answer the
test of a reasonably equipped prudent practitioner carrying
reasonable workload A line will have to be drawn between
tolerable negligence and culpable negligence in the sense of
negligence Which can be treated as professional misconduct
exposing a Member of the profession to punishment in the
course of disciplinary proceedings. In forming the opinion
on this question the standards of professional conduct and
etiquette spelt out in Chapter 2 of Part VI of the Rules
governing Advocates, framed under Section 60 (3) and Section
49(1)(g) of the Act, which form a part of the Bar Council of
India Rules may be consulted. As indicated in the preamble
of the Rules, an Advocate shall, at all times compose
himself in a manner befitting his status as an Officer of
the Court, a privileged member of the community and a
gentleman bearing in mind what may be lawful and moral for
one who is not a member of the bar may still be improper for
an Advocate and that his conduct is required to conform to
the rules relating to the duty to the Court, the duty to the
client, to the opponent, and the duty to the colleagues, not
only in letter but also in spirit.
It is in the light of these principles the Committee
would be required to approach the question as regards th
guilt or otherwise of an Advocate in the context of
professional misconduct levelled against him. In doing so
apart from conforming to such procedure as may have been
outlined in the Act or the Rules, the Disciplinary Authority
would be expected to exercise the power with full
consciousness and awareness of the paramount consideration
regarding principles of natural justice and fair play.
The State Bar Council, after calling for the comments of
the appellant in the context of the complaint, straightway
proceeded to record the evidence of the parties. No charge
was framed specifying the nature and content of the
professional misconduct attributed to the appellant. Nor
PG NO 372
were any issues framed or points for determination
formulated. The Disciplinary Committee straightway proceeded
to record evidence. As the case could not be concluded
within the prescribed time limit the matter came to be
transferred to the Bar Council of India which has heard
arguments and rendered the order under appeal.
The questions which have surfaced are:
(1) Whether a specific charge should have been framed
apprising the appellant of the true nature and content of
the professional misconduct ascribed to him?
(2) Whether the doctrine of benefit of doubt and the
need for establishing the basic allegations were present in
the mind of the Disciplinary Authority in recording the
finding of guilt or in determining the nature and extent of
the punishment inflicted on him?
(3) Whether in the absence of the charge and finding of
dishonesty against him the appellant could be held guilty of
professional misconduct even on the assumption that he had
acted on the instructions of a person not authorised to act
on behalf of his client if he was acting in good faith and
in a bona fide manner. Would it amount to lack of prudence
or nonculpable negligence or would it constitute
professional misconduct?
Now so far as the procedure followed by the State Bar
Council at the Enquiry against the appellant, is concerned
it appears that in order to enable the concerned Advocate to
defend himself properly, an appropriate specific charge was
required to be framed. No doubt the Act does not outline the
procedure and the Rules do not prescribe the framing of a
charge. But then even in a departmental proceeding in an
enquiry against an employee, a charge is always framed.
Surely an Advocate whose honour and right to earn his
livelihood are at stake can expect from his own professional
brethern. what an employee expects from his employer? Even
if the rules are silent, the paramount and overshadowing
considerations of fairness would demand the framing of a
charge. In a disciplinary proceeding initiated at the level
of this Court even though the Supreme Court Rules did not so
prescribe, in re: Shri `M’ an Advocate of the Supreme Court
of India [1956] SCR page 811(814) this Court framed a
charge after making these observations:
PG NO 373
We treated the enquiry in Chambers as a preliminary
enquiry and heard arguments on both sides with reference to
the matter of that enquiry. We came to conclusion that this
was not a case for discharge at that stage. We accordingly
reframed the charges framed by our learned brother, Bhagwati
J., and added a fresh charge. No objection has been taken to
this course. But it is as well to mention that, in our
opinion, the terms of Order IV, rule 30 of the Supreme Court
Rules do not preclude us from adopting this course,
including the reframing of, or adding to, the charges
specified in the original summons, where the material at the
preliminary enquiry justifies the same. The fresh enquiry
before us in Court has proceeded with reference to the
following charges as reframed and added to by us.”
It would be extremely difficult for an Advocate facing a
disciplinary proceeding to effectively defend himself in the
absence of a charge framed as a result of application of
mind to the allegations and to the question as regards what
particular elements constituted a specified head of
professional misconduct.
The point arising in the context of the non-framing of
issues has also significance. As discussed earlier Rule 8(1)
enjoins that “the procedure for the trial of Civil suits,
shall as far as possible be followed.” Framing of the
issues based on the pleadings as in a Civil suit would be of
immense utility. The controversial matters and substantial
questions would be identified and the attention focussed on
the real and substantial factual and legal matters in
contest. The parties would then become aware of the real
nature and content of the matters in issue and would come to
know (l) on whom the burden rests (2) what evidence should
be adduced to prove or disprove any matter (3) to what end
cross examination and evidence in rebuttal should be
directed. When such a procedure is not adopted there exists
inherent danger of miscarriage of justice on account of
virtual denial of a fair opportunity to meet the case of the
other side. We wish the State Bar Council had initially
framed a charge and later on framed issues arising out of
the pleadings for the sake of fairness and for the sake of
bringing into forefront the real controversy.
In the light of the foregoing discussion the questions
arising in the present appeal may now to be examined. In
substance the charge against the appellant was that he had
withdrawn a suit as settled without the instructions from
the complainant. It was not the case of the complainant that
PG NO 374
the appellant had any dishonest motive or that he had acted
in the matter by reason of lack of probity or by reason of
having been won over by the other side for monetary
considerations or otherwise. The version of the appellant
was that the suit which had been withdrawn had been
instituted in a particular set of circumstances and that the
complainant had been introduced to the appellant for
purposes of the institution of the suit by an old client of
his viz. RW 3 Gautam Chand. The appellant was already
handling, a case on behalf of RW 3 Gautam Chand against RW 4
Anantharaju. The decision to file a suit on behalf of the
complainant against RW 4 Anantharaju was taken in the
presence of RW 3 Gautam Chand. It was at the instance and
inspiration of RW 3 Gautam Chand that the suit had been
instituted by the complainant, but really he was the nominee
of Gautam Chand and that the complainant himself had no real
claim on his own. It transpires from the records that it was
admitted by the complainant that he was not maintaining any
account books in regard to the business and he was not an
Income-tax assessee. In addition,the complainant (PW 1)
Haradara himself has admitted in his evidence that it was
Gautam Chand who had introduce him to the appellant, and
that he was in fact taken to the office of the appellant for
filling the said suit, by Gautam Chand. It was this suit
which was withdrawn by the appellant. Of course it was
withdrawn without any written instruction from the defendant
against whom he had filed the suit for recovery of Rs.
30,000 and odd through Gautam Chand and that he did not know
the defendant intimately or closely. He also admitted that
the cheques used to be passed in favour of the party and
that he was not entitled to the entire amount. He used to
get only commission.
Since even on the admission of the complainant himself
he was taken to the office of the appellant for instituting
the suit, by RW 3 Gautam Chand, and old client of th
appellant whose dispute with the defendant against whom the
complainant had filed the suit existed at the material time
and was being handled by the appellant. The defence of the
appellant that he had withdrawn the suit in the
circumstances mentioned by him required to be considered in
the light of his admissions. The defence of the appellant
being that the suit was withdrawn under the oral
instructions of the complainant in the presence of RW 3
Gautam Chand and RW 4 Anantharaju and inasmuch as RWs 3 and
4 supported the version of the appellant on oath, the matter
was required to be examined in this background. Assuming
that the evidence of the appellant corroborated by RWs 3
and 4 in regard to the presence of the complainant was not
considered acceptable, the question would yet arise as to
PG NO 375
whether the withdrawal on the part of the appellant as per
the oral instructions of RW 3 Gautam Chand who had taken the
complainant to the appellant for instituting the suit, would
amount to professional misconduct. Whether the appellant had
acted in a bona fide manner under the honest belief that RW
3 Gautam Chand was giving the instructions on behalf of the
complainant required to be considered. If he had done so in
a bona fide and honest belief would it constitute
professional misconduct, particularly having regard to the
fact that nO allegation regarding corrupt motive was
attributed or established? Here it has to be mentioned that
the appellant had acted in an open manner in the sense that
he had in his own hand made endorsement for withdrawing the
suit as settled and sent the brief to his junior colleague.
If the appellant had any oblique motive or dishonest
intention. he would not have made the endorsement in his own
hand.
No doubt Rule 19 contained in Section 2 captioned `Duty
to the clients’ provides that an Advocate shall not act on
the instructions of any person other than his client or his
authorised agent. If, therefore, the appellant had acted
under the instructions of RW 3 Gautam Chand bona fide
believing that he was the authorised agent to give
instructions on behalf of the client, would it constitute
professional misconduct? Even if RW 3 was not in fact an
authorised agent of the complainant, but if the appellant
bona fide believed him to be the authorised agent having
regard to the circumstances in which the suit came to be
instituted, would it constitute professional misconduct? Or
would it amount to only an imprudent and unwise act or even
a negligent act on the part of the appellant? These were
questions which directly arose to which the Committee never
addressed itself. There is also nothing to show that the
Disciplinary Committee has recorded a finding on the facts
and the conclusion as regards the guilt in full awareness of
the doctrine of benefit of doubt and the need to establish
the facts and the guilt beyond reasonable doubt. As has been
mentioned earlier, no charge has been formulated and framed,
no issues have been framed. The attention of the parties was
not focussed on what were the real issues. The appellant
was not specifically told as to what constituted
professional misconduct and what was the real content of the
charge regarding the professional misconduct against him.
In the order under appeal the Disciplinary Committee has
addressed itself to three questions viz.
PG NO 376
(i) Whether the complainant was the person who entrusted
the brief to the appellant and whether the brief was
entrusted by the complainant to the appellant?
(ii) Whether report of settlement was made without
instruction or knowledge of the complainant?
(iii) Who was responsible for reporting settlement and
instructions of the complainant?
In taking the view that the appellant had done so
probably with a view to clear the cloud of title of RW 3 as
reflected in paragraph 22 quoted herein, the Disciplinary
Committee was not only making recourse to conjucture.
surmise and presumption on the basis of suspicion but also
attributing to the appellant a motive which was not even
attributed by the complainant and of which the appellant was
not given any notice to enable him to meet the charge:
“It is not possible to find out as to what made PW 2 to
have done like that. As already pointed out the house
property which was under attachment had been purchased by RW
3 during the subsistence of the attachment. Probably with a
view to clear the cloud of title of RW 3, PW 2 might have
done it. This is only our suspicion. Whatever it might be,
it is clear that RW 2 had acted illegally in directing RW l
to report settlement.”
In our opinion the appellant has not been afforded
reasonable and fair opportunity of showing cause inasmuch as
the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made
aware of the precise charge he was required to rebut. The
conclusion reached by the Disciplinary Committee in the
impugned order further shows that in recording the finding
of facts on the three questions, the applicability of the
doctrine of benefit of doubt and need for establishing the
facts beyond reasonable doubt were not realised. Nor did the
Disciplinary Committee consider the question as to whether
the facts established that the appellant was acting with
bona fides or with mala fides, whether the appellant was
acting with any oblique or dishonest motive, whether there
was any mens rea, whether the facts constituted negligence
and if so whether it constituted culpable negligence. Nor
has the Disciplinary Committee considered the question as
regards the quantum of punishment in the light of the
aforesaid considerations and the exact nature of the
professional misconduct established against the appellant.
PG NO 377
The impugned order passed by the Disciplinary Committee,
therefore cannot be sustained. Since we do not consider it
appropriate to examine the matter on merits on our own
without the benefit of the finding recorded by the
Disciplinary Committee of the apex judicial body of the
legal profession, we consider it appropriate to remit the
matter back to the Disciplinary Committee. As observed by
this Court in O.N. Mohindroo v. The District Judge, Delhi
and Anr., Supreme Court Bar Association, [1971] 3 SCC 5 in
paragraph 23 quoted hereinbelow, we have no doubt that the
Disciplinary Committee will approach the matter with an open
mind:
“From this it follows that questions of professional
conduct are as open as charges of cowardice against Generals
for reconsideration of the conviction of persons convicted
of crimes. Otherwise how could the Hebron brothers get their
conviction set aside after Charles Peace confessed to the
crime for which they were charged and held guilty?”
We must explain why we consider it appropriate to remit
the matter back to the Bar Council of India. This matter is
one pertaining to the ethics of the profession which the law
has entrusted to the Bar Council of India. It is their
opinion of a case which must receive due weight because in
the words of Hidayatullah, CJ, in Mohindroo’s case:
“This matter is one of the ethics of the profession
which the law has entrusted to the Bar Council of India. It
is their opinion of a case which must receive due weight.”
It appears to us that the Bar Council of India must have
an opportunity to examine the very vcxed and sensitive
question which has arisen in the present matter with utmost
care and consideration. the question being of great
importance for the entire profession. We are not aware of
any other matter where the apex body of the profession was
required to consider whether the bona fide act of an
Advocate who in good faith acted under the instructions of
someone closely connected with his client and entertained a
bona fide belief that the instructions were being given
under the authority of his client, would be guilty of
misconduct. It will be for the Bar Council of India to
consider whether it would constitute an imprudent act, an
unwise act. a negligent act or whether it constituted
negligence and if so a culpable negligence, or whether it
constituted a professional misconduct deserving severe
punishment, even when it was not established or atleast not
PG NO 378
established beyond reasonable doubt that the concerned
Advocate was acting with any oblique or dishonest motive or
with mala fides. This question will have to be determined in
the light of the evidence and the surrounding circumstances
taking into account the doctrine of benefit of doubt and the
need to record a finding only upon being satisfied beyond
reasonable doubt. In the facts and circumstances of the
present case, it will also be necessary to re-examine the
version of the complainant in the light of the foregoing
discussion keeping in mind the admission made by the
complainant that he was not maintaining any books of
accounts and he was not an Income-tax assessee and yet he
was the real plaintiff in the suit for Rs.30,000 and odd
instituted by him, and in the light of the admission that it
was RW 3 Gautam Chand who had introduced him to the
appellant and that he was in fact taken to the office of the
appellant, for filing the suit, by RW 3 Gautam-Chand. The
aforesaid question would arise even if the conclusion was
reached that the complainant himself was not present and had
not given instructions and that the appellant had acted on
the instructions of RW 3 Gautam Chand who had brought the
complainant to the appellant’s office for instituting the
suit and who was a close associate of the complainant.
Since all these aspects have not been examined at the level
of the Bar Council, and since the matter raises a question
of principle of considerable importance relating to the
ethics of the profession which the law has entrusted to the
Bar Council of India, it would not be proper for this Court
to render an opinion on this matter without the benefit of
the opinion of the Bar Council of India which will accord
close consideration to this matter in the light of the
perspective unfolded in this judgment both on law and on
facts. We are reminded of the high degree of fairness with
which the Bar Council of India had acted in Mohindroo’s
case. The Advocate concerned was suspended from practice for
four years. The Bar Council had dismissed the appeal.
Supreme Court had dismissed the Special Leave Petition
summarily. And yet the whole matter was reviewed at the
instance of the Bar Council and this Court was persuaded to
grant the review. A passage extracted from Mohindroo’s case
deserves to be quoted in this connection:
“37. We find some unusual circumstances facing us. The
entire Bar of India are of the opinion that the case was not
as satisfactorily proved as one should be and we are also of
the same opinion. All processes of the Court are intended to
secure justice and one such process is the power of review.
No doubt frivolous reviews are to be discouraged and
technical rules have been devised to prevent persons from
PG NO 379
reopening decided cases. But as the disciplinary committee
themselves observed there should not be too much
technicality where professional honour is involved and if
there is a manifest wrong done, it is never too late to undo
the wrong. This Court possesses under the Constitution a
special power of review and further may pass any order to do
full and effective justice. This Court is moved to take
action and the Bar Council of India and the Bar Association
of the Supreme Court are unanimous that the appellant
deserves to have the order disbarring him from practice set
aside.
We have therefore no doubt that upon the matter being
remitted to the Bar Council of India it will be dealt with
appropriately in the light of the aforesaid perspective. We
accordingly allow this appeal, set aside the order of the
Bar Council in so far as the appellant is concerned and
remit the matter to the Bar Council of India. We. however,
wish to make it clear that it will not be open to the
complainant to amend the complaint or to add any further
allegation. We also clarify that the evidence already
recorded will continue to form part of the record and it
will be open to the Bar Council of India to hear the matter
afresh on the same evidence. It is understood that an
application for restoration of the suit which has been
dismissed for default in the City Civil Court at Bangalore
has been made by the complainant and is still pending before
the Court. It will be open to the Bar Council of lndia to
consider whether the hearing of the matter has to be
deferred till the application for restoration is disposed
of. The Bar Council of India may give appropriate
consideration to all these questions.
We further direct that in case the judgment rendered by
this Court or any part thereof is reported in Law Journals
or published elsewhere, the name of the appellant shall not
be mentioned because the matter is still subjudice and
fairness demands that the name should not be specified. The
matter can be referred to as an Advocate v. The Bar Council
or in re. an Advocate without naming the appellant.
The appeal is disposed of accordingly. No order
regarding costs.
Y. Lal Appeal disposed of.
