Vs. The Bar Council of India, New Delhi & Ors  INSC
122 (4 February 1997)
AGRAWAL, SUJATA V. MANOHAR
4TH DAY OF FEBRUARY, 1997 Present:
Mr. Justice S.C. Agrawal Hon'ble Mrs. Justice Sujata V. Manohar A.T.M. Sampath
and V. Balaji, Advs. for the appellant A. Mariarputham and Ms. Aruna Mathur and
V.Krishnamurthy, Advs. for the Respondent Nos. 2-3
following Judgment of the Court was delivered:
V. Manohar, J.
appeals arise from a common order dated 15.5.1986 passed by the Disciplinary
Committee of the Bar Council of India in D.C.I.T. Case Nos.48 and 49 of 1985.
These two cases pertain to the appellant and were transferred to the appellant
and were transferred to the Disciplinary Committee of the Bar Council of India
under the provisions of Section 36B(1) of the Advocates Act, 1961 as the
Disciplinary Committee of the Bar Council of Tamil Nadu could not dispose of
these cases within the prescribed period of one year.
about 21st of October, 1978, the appellant was appointed as City Government
Pleader in all the Civil Courts constituted in Madras other than the High Court of Madras.
work was spread over several courts in Madras and the appellant as the city Government Pleader was required to
conduct all the civil matters pending in the civil courts of Madras except the High Court, on behalf of
the Government and also to give his opinion on these matters from time to time
when required. The appellant was allowed the assistance of juniors who were not
appointed by the Government. The respondent was provided with staff.
first complaint which was filed by the Commission and Secretary, Government of
Tamil Nadu against the appellant before the Disciplinary Committee of the Bar
Council of Tamil Nadu bearing D.C. Case No. 48/1985 was in respect of Suit
No.400 of 1978 on the file of the City Civil Court at Madras. The Government Pleader was
instructed to appear on behalf of the State Government in that case. The Memo
of Appearance had been filed by the earlier Government Pleader. The records of
the case had been sent to the Office of the Government Pleader and he had also
been asked to prepare a written statement. However, when the appellant was
appointed as Government Pleader, a fresh Memo of Appearance on his behalf had
not been filed in the said suit nor were the papers put up before him. As a
result, on 28.6.1979, the suit was decreed ex parte against the State. An
application was thereafter moved by the appellant to set aside the ex parte
order. The court set aside the ex parte order on condition that the Government
should pay Rs.20/- as costs.
the cost was not deposited. As a result the application to set aside the ex parte
order was dismissed on 27-9-1979. Consequently the suit was decreed
ex parte with costs.
suit had been filed by the Travancore Textiles Pvt. Ltd. against the State of Tamil Nadu relating to a lease of land
admeasuring 1240 sq.ft. forming part of a channel. The plaintiff had prayed for
a declaration that the annual rent of Rs.3609.66 as also the Municipal taxes
levied were illegal. The plaintiff had also made a prayer for refund of Rs.25,575.40
with interest at the rate 12% p.a.
for a further declaration that he need not pay any rent after 30.6.1974. The
complainant alleged that as a result of the gross negligence on the part of the
appellant the Government of Tamil Nadu had suffered substantial loss.
appellant contended that since the office staff had not put up the papers of
this case before him, it was through inadvertence that the suit was decreed ex parte.
The Bar Council of India has, however, noted that at the time when an
application for setting aside the ex parte order was filed the appellant must
have known about the pendency of the case, and the serious consequences that
would follow if the order for payment of costs were not complied with. The Bar
Council has held that for this lapse the appellant cannot raise the plea that
the staff was negligent. Now, although the application for setting aside the ex
parte order is filed by the appellant, it is not clear from the record whether
the appellant had personally appeared in court for setting aside the ex parte
order or was personally aware of or was appraised of the order of costs which
had been while setting aside the ex parte order.
fact, the Bar Council of India has noted mitigating circumstance which go to
show that blame cannot be attached solely to the appellant. It has noted that
from the correspondence which is brought on record, it is clear that at no
point of time the papers pertaining to the case were placed before the
appellant except for moving an application for setting aside the ex parte
order. It is also not known whether the application was actually moved by the
appellant himself or through a junior. It is not clear whether the order which
was passed on this application for payment of costs was brought to the notice
of the appellant either. The Bar Council has also noted that after the summons
in the case was served on the State of Tamil Nadu through the Secretary to the
Government of Tamil Nadu in June 1978, a letter was sent on 27th of June, 1978
by the then Government Pleader. Thereafter the Collector of Madras vide his
letter dated 20th of September, 1978, sent details and office remarks on the
plaintiff's claim. At this time the appellant was not Government Pleader. These
papers were received by his predecessor who made an endorsement on the letter
of the Collector of Madras to the effect that remarks/statements be prepared.
It is also not clear to whom this matter was assigned. According to the
distribution of work, copy of which has been placed on record by the appellant,
it was the duty of G. Jagannathan, the then Assistant to submit the records of
the case of the City Government Pleader for preparation of the written
statement. In the letter addressed by the Collector of Madras he had directed
the Executive Deputy Tehsildar, Egmore to meet the Government advocate with the
concerned file and to render necessary assistance in preparing the draft
written statement. But it appears that no one attended the office of the
Government Pleader with the concerned file for preparing the written statement.
the appellant took charge as the Government Pleader, he had also notified that
representatives of the departments of the Government should remain present
personally with files on various dates of hearing so that suitable instruction
can be made available to the Government Pleader for conducting the case. But
this instruction also does not seem to have been followed. It is in these
circumstances that the case of the State went unrepresented.
Bar Council has said that the office staff of the appellant was also
responsible for misleading the appellant and keeping him in the dark. The
Government also did not care to depute a responsible officer to attend the
office of the Government Pleader.
noting these circumstance the Bar Council of India has imposed a
"lighter" punishment of severe reprimand after noting that the
appellant is a fairly senior advocate in the State of Tamil Nadu and has a good reputation and a
good standing at the Bar.
next complaint No.17 of 1984 is in respect of a suit filed by an employee of
the Directorate of Education of the State of Tamil Nadu challenging his date of birth.
was forwarded to the appellant along with a letter date 24.9.1979 informing him
that the date of hearing in the case was 10.10.1979. There is an endoresment
made by the office of the Government Pleader on that letter. Thereafter another
letter of 25.9.1979 was received by the office of the Government Pleader from
the Directorate of Education, Madras on
which an endorsement was made, "remarks/written statement to be
prepared". These remarks are in the same handwriting in which the endoresment
on the previous letter is made. However, no memorandum for appearance was filed
in that suit on behalf of the State of Tamil Nadu. On 26.10.1979 an ex parte decree came to be passed in that suit.
appellant has contended that the office had not put up these papers before him.
Therefore, there had been a lapse in attending to this case. Here also the Bar
Council of India has accepted that there was no deliberate lapse on the part of
the appellant. His only lapse was not to have kept the office in order. The Bar
Council has held, "It may be that due to rush of work office might have
kept him in dark and the papers might not have been put up......". The
finding against the appellant, therefore, is that he was not able to control
his office on account of rush of work and also because the staff which was
allotted to him had been negligent in the performance of its duties and had not
put up the papers in the concerned cases before him to enable him to take
appropriate action. The appellant has been held guilty of "constructive
negligence", and the Bar Council of India has reprimanded him.
to all the circumstances the appellant was negligent as he had failed to attend
to the two cases. His client had to suffer ex parte decrees. There is, however,
no finding of any mala fides on the part of the appellant or any deliberate
inaction on his part in not attending to the two cases. Will his negligence or
"constructive negligence" as the respondent-Bar Council puts it,
amount to professional misconduct? Whether negligence will amount to
professional misconduct or not will depend upon the facts of each case. Gross
negligence in the discharge of duties partakes of shades of delinquency and
would undoubtedly amount to professional misconduct. Similarly, conduct which
amounts to dereliction of duty by an advocate towards his client or towards his
case would amount to professional misconduct. But negligence without moral
turpitude or delinquency may not amount to professional misconduct.
case of In re a vakil (1926 ILR 49 Mad.
523), Coutts Trotter, C.J., said, "negligence by itself is not
professional misconduct; into that offence there must enter the element of
moral delinquency. Of that there is no suggestion here, and we are, therefore,
able to say that there is no case to investigate, and that no reflection
adverse to his professional honour rests upon Mr.M." In the case of P.D. Khandekar
v. Bar Council of Maharashtra & Ors. (AIR 1984 SC 110 at 113), this Court
said, "There is a world of difference between the giving of improper legal
advice and the giving of wrong legal advice. Mere negligence unaccompanied by
any moral delinquency on the part of a legal practitioner in the exercise of
his profession does not amount to professional misconduct...........For and
advocate to act towards his client otherwise than with utmost good faith is
unprofessional. When an advocate is entrusted with a brief he is expected to
follow norms of professional ethics and try to protect interests of his client
in relation to whom he occupies a position of trust.
paramount duty is to the client. When a person consults a lawyer for his advice
he relies upon his requisite experience, skill and knowledge as a lawyer and
the lawyer is expected to give proper and dispassionate legal advice to the
client for the protection of his interests".
present case, there is failure on the part of the appellant to discharge his
duties towards his client.
failure, however, is not deliberate. It is on account of heavy pressure of work
coupled with lack of diligence on the part of his staff as well as on the part
of his client in not sending a responsible person with papers to the office of
the Government pleader. However, while the appellant cannot be held responsible
for his client's failure to attend the office, the appellant cannot shift the
blame entirely on his staff. As the head of the office it was his
responsibility to make sure that the work is properly attended to and the staff
performs its functions properly and diligently. The appellant has, therefore,
rightly been held guilty of negligence. However, in the absence of any moral
turpitude or delinquency on his part, we cannot sustain the finding of the Bar
council of India that his conduct in the facts and circumstances
of this case amounts to professional misconduct. In fact the various mitigating
circumstances have been noted by the Bar council of India itself. The negligence on the part
of the appellant in these circumstances cannot be construed as professional
appeals are, therefore, allowed. There will, however, be no order as to costs.