IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28140 of 2009(J)
1. SASIDHARAN NAIR M.P.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE SECRETARY,
3. THE JOINT SECRETARY TO GOVERNMENT &
For Petitioner :SRI.BIJU BALAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :02/12/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) Nos. 28140 & 28720 OF 2009
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Dated this the 2nd day of December, 2009
J U D G M E N T
Common questions arise in these two writ petitions. They were
therefore heard together and are being disposed of by this common
judgment.
2. The petitioners in these writ petitions are Advocates practising at
Thiruvananthapuram. The petitioner in W.P.(C) No. 28140 of 2009 was
appointed as Notary on 14.3.1995 and the petitioner in W.P.(C) No. 28720
of 2009 on 16.12.1996. On 9.1.2008, the Passport Officer,
Thiruvananthapuram sent Ext.P3 letter produced in W.P.(C) No. 28140 of
2009 to the Law Secretary, Government of Kerala enclosing along with it
two affidavits in original, one each signed by the petitioners but not by the
deponents. The Passport Officer had also enclosed the explanation
submitted by the deponents. He had also enclosed copies of three other
affidavits attested by other Notaries which did not bear the signature of the
deponents but had been attested by the Notaries. By Ext.P3 letter
produced in W.P.(C) No. 28140 of 2009, the Passport Officer requested
the Law Secretary to take action against the petitioners.
3. On receipt of Ext.P3 letter from the Passport Officer, the Law
Secretary forwarded copies thereof together with the accompanying
papers to the petitioners and called for their explanation. The petitioner in
W.P.(C) No. 28140 of 2009 submitted Ext.P4 reply dated 28.1.2008.
W.P.(C) No. 28140/09 & 28720/09
2
Along with it he also enclosed Ext.P5, a true copy of the relevant page of
the register maintained by him. It was stated that the deponent had come
over to his office and signed the register maintained by him and that as he
was in a hurry on the bonafide belief that the deponent had affixed her
signature to the affidavit he had attested it over looking the fact that the
deponent has not affixed her signature. He submitted that it is a bona fide
mistake and that it was not done with malicious or dishonest intention. The
petitioner in W.P.(C) No. 28720 of 2009 submitted Ext.P5 reply wherein he
stated that as he was in a hurry to take his daughter to the college, he
attested the affidavit and asked the deponent to immediately sign it. He
stated that the parents of the deponent are persons known to him and that
was the reason why he attested the affidavit even before the deponent
signed it. He also stated that he was not motivated by any malafide or
dishonest intention to attest the affidavit even before the deponent signed
it.
4. After the petitioners submitted their explanations, the Joint
Secretary, Law Department, conducted an enquiry and submitted a report
to the Law Secretary. On the basis of the said enquiry report, the Law
Secretary issued Ext.P6 show cause notice dated 22.7.2008 to the
petitioners informing them that the enquiry conducted by the competent
authority prima facie reveals that they have committed the offence under
Section 8(1)(a) of the Notaries Act, 1952 and that professional misconduct
W.P.(C) No. 28140/09 & 28720/09
3
on their part is prima facie made out. The petitioners were called upon to
show cause why disciplinary action as contemplated under Rule 13(12)(b)
of the Notaries Rules, 1956, should not be taken against them. On receipt
of Ext.P6 show cause notice, Ext.P7 reply was sent. Thereafter they were
heard on 24.3.2009 by the Law Secretary. The Law Secretary thereafter
passed Ext.P8 order dated 19.9.2009 debarring the petitioners from
practising as Notaries and issued Ext.P9 notification dated 19.9.2009
striking off their names from the Register of Notaries. A copy of Ext.P8 is
produced and marked as Ext.P11(a) in W.P.(C) No. 28720 of 2009. The
said orders are under challenge in these writ petitions.
5. I heard the learned counsel appearing on both sides. I have also
considered the materials placed on record. The learned counsel appearing
for the petitioners contended that in the absence of an allegation in the
show cause notice or a finding in the impugned orders to the effect that the
petitioners had acted with wrongful intention or a corrupt motive, the order
debarring them from practising as Notaries and removing their names from
the Register of Notaries is illegal and is liable to be set aside. The learned
counsel relied on the decision of a learned Single Judge of this Court in
Mohandas v. State of Kerala (2001 (3) KLT 174) and the decision of a
Division Bench of the Alahabad High Court in State Government of Uttar
Pradesh v. Kashi Prasad (AIR 1969 Allahabad 363) in support of their
contentions. Per contra, the learned Government Pleader contended that
W.P.(C) No. 28140/09 & 28720/09
4
as the petitioners admit that they had attested the affidavits even before the
deponents signed it, no further proof is required to establish that they had
committed an act of misconduct in the discharge of their duty as a Notary.
6. A Division Bench of the Alahabad High Court has in State
Government of Uttar Pradesh v. Kashi Prasad (AIR 1969 Allahabad
363) held that every irregularity or negligence on the part of a Notary would
not amount to professional misconduct. It was held that professional
misconduct suggests dishonesty or a conduct involving moral turpitude. In
Mohandas v. State of Kerala (2001 (3) KLT 174) a learned Single Judge
of this Court held that in order to characterise a certain act or omission as
misconduct there must be a wrongful intention or a corrupt motive. The
learned single Judge held that the conduct must be such that the person is
unworthy of continuing in the legal profession. The learned Single Judge
held that as there is no allegation as in the instant case, that the petitioner
therein had done the act complained of with wrongful intent or with any
corrupt motive it cannot be said that he is guilty of professional misconduct.
7. In the instance case, a close reading of Ext.P3 letter and Ext.P6
show cause notice makes it evident that the petitioners were not called
upon to meet a charge that they had acted with dishonest intention or that
their conduct involves moral turpitude. There is no allegation that the
petitioners attested the affidavits even before the deponents affixed their
signature with a wrongful intention or corrupt motives. The petitioners were
W.P.(C) No. 28140/09 & 28720/09
5
not called upon to meet a charge that they have committed an act of
professional misconduct which renders them unworthy to continue in the
legal profession as Notaries. As held by the Division Bench of the
Alahabad High Court in State Government of Uttar Pradesh v. Kashi
Prasad (supra) every irregularity or negligence on the part of a Notary
would not amount to professional misconduct. There should be proof of
dishonesty or conduct involving moral turpitude. In the impugned orders
also, the Government have not found that the petitioners have committed
any act of misconduct with a dishonest or corrupt motive or that their
conduct involves moral turpitude. In such circumstances, I am of the
opinion that the decision taken by the Government to permanently debar
the petitioners from practising as Notaries and the consequential
notification issued by the Government removing their names from the
Register of Notaries cannot be sustained.
8. Under Rule 13(12) of the Notaries Rules, 1956, the Government
can either cancel the certificate of practice and perpetually debar the
Notary from practice or suspend him from practice for a specified period or
let him off with a warning, according to the nature and gravity of the
misconduct proved. In view of my conclusion that no grounds exist to
perpetually debar the petitioners from practicing as Notaries, the
Government can only suspend them from practising as Notaries for a
specified period or let them off with a warning. The petitioners have been
W.P.(C) No. 28140/09 & 28720/09
6
practising as Notaries for more than a decade. Apart form the solitary act
of misconduct which forms the foundation for the impugned orders, no
other previous instance of misconduct in the discharge of their duties has
been placed on record or referred to in the impugned orders. The
impugned orders were issued on 19.9.2009 and names of the petitioners
stood removed from the Register with effect from that date. Since no
previous act of misconduct is alleged or found against the petitioners, I am
of the opinion that the petitioners should be deemed to be under
suspension from 19.9.2009 onwards till this date.
I, accordingly allow these writ petitions, quash the impugned orders
and direct the respondents to treat the period from 19.9.2009 till date as
period during which the petitioners were suspended from practising as
Notaries. The respondents shall forthwith take steps to restore the names
of the petitioners in the Register of Notaries with effect from 3.12.2009 and
shall also revalidate their Certificate of Practice.
P.N.RAVINDRAN, JUDGE
vps