In The Matter of P. An Advocate [1963]
INSC 10 (23 January 1963)
23/01/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1963 AIR 1313 1964 SCR (1) 697
CITATOR INFO:
RF 1976 SC 242 (23) R 1984 SC 110 (6,7) RF
1992 SC1398 (4)
ACT:
Advocate-Professional Misconduct--Failure to
file Bill of Costs in time-Gross negligence, when amounts to professional
misconduct-Senior Advocate receiving fees directly from clientPropriety of-Supreme
Court Rules, O. IV-A.
HEADNOTE:
Mr. P, an Advocate-on-record of the Supreme
Court, acted for Respondent No. 2 (b) in the appeal and Mr. J, a Senior
Advocate, was briefed to lead him at the hearing. The client had paid Rs. 500/-
to Mr. I?. and Mr. j was paid Rs. 1,000/direct by the client. The appeal was
dismissed with costs in favour of Respondent No. 2 (b). Though the client paid
him the expenses asked for Mr. P did not lodge the Bill of Costs within the
time allowed but filed in about 10 months beyond time. As the Bill of Costs was
not accompanied by an application for condonation of delay, it was returned.
Mr. P took no steps thereafter but, a year
later he asked for and received another sum of Rs.. 200/-from his client.
The client repeatedly wrote to the Advocate
enquiring about the Bill of Costs but received no reply. The client applied for
discharging the Advocate and for condonation of delay in filing the Bill of'
Costs, both of which prayers were granted. The Chief justice constituted a tribunal
under 0.
IV-A, r. I 8, Supreme Court Rules to enquire
into the conduct of Mr. P. The Tribunal held that the Advocate acted with
gross-negligence and that his conduct amounted to professional. or other
misconduct within the meaning of 0.
IV-A. Thereafter the matter was placed before
the Court for final disposal.
Held, that the Advocate was guilty of
professional misconduct and his name should be removed from the rolls for five
years.
The Advocate was guilty of causing gross
delay in filing the Bill of Costs for which there was no acceptable
explanation.
Though mere negligence or error of judgment
did not amount to professional misconduct, different considerations arose where
the negligence of the Advocate was gross. Sometimes, Courts examine whether the
gross negligence involves moral turpitude or delinquency. Conduct which is
contrary to honesty, or opposed 698 to good morals or is unethical involves
moral turpitude. An unduly narrow view of the concept of moral turpitude or
delinquency is not to be taken and it has to be seen whether by his conduct the
Advocate has rendered himself unworthy to be a member of the legal profession.
The Tribunal which consisted of three members of the legal profession, was a
good judge of what was professional misconduct as an Advocate., in re A Vakil,
(1925) I.L.R. 49 Mad. 523, In the matter of an Advocate of Aqra, I.L.R. 1940
All. 386, Allinson v. General Council of Medical Education and Registration,
(1894) 1 Q.B. 750, In re A Solicitor Ex parte the Law Society. (1912) 1 K.B.
302, In the matter of an Advocate, (1936) I.L.R. 63 Cal.867 and In the matter
of an Advocate,(1933) I.L.R. 12 Ran 110, referred to.
The acceptance of fee by a Senior Advocate
direct from the client is not consistent with professional etiquette and
convention about the conduct of Senior Counsel.
DISCIPLINARY JURISDICTION Sarju Prasad and A.
D. Mathur, for the Advocate.
C. K. Daphtary, Solicitor General of India,
and R. N. Sachthey, for the Attorney-General for India.
1963. January 23. The judgment of the Court
was delivered by GAJENDRAGADKAR, J.-Mr. P., who is an advocate-on-record of
this Court and who wilt hereafter be called the 'Advocate', acted for the Board
of Trustees of the Dakhina Parswa Nath of Puri through its Executive Officer respondent
No. 2 (b) in Civil Appeal No. 232/1954. As such Advocate he entered appearance
on November 9, 1957. The said appeal was heard on May, 2 and 6, 1958, and by
the judgement pronounced by this Court on May, 20, 1958, it was dismissed with
costs in favour of respondent No. 2 (b). The Advocate had briefed Mr. J. as a
senior Advocate to lead him at the hearing of the appeal. It appears that the
client had paid 699 the Advocate Rs. 500/- on the eve of the hearing of the
appeal and the senior Advocate was paid Rs. 1,000/- direct by the client. The
Bill of Costs and vouchers had to be filed by the Advocate on behalf of his
client within six weeks from the date of judgment under O. XL r. 12 of the
Supreme Court Rules (hereinafter called the 'Rules'). The said period expired
during the summer vacation of the Court.
After the summer vacation, the Court reopened
on August 4, 1958. Meanwhile, on May, 20 1958, after the judgment was delivered
by this Court, the Advocate wrote to his client informing him about the result
of the appeal and intimating to him that the bill of costs had to be filed. On
June, 28, 1958, he again wrote to his client and called for Rs. 60/- to meet
the necessary expenses in the matter of presenting the bill of costs. This
amount was paid to him at Puri on july 26, 1988, and the Advocate passed a
receipt in that behalf, He, however, took no further action in the matter until
about January 9, 1959, when it appears that he inspected the Court records in
order to be able to prepare a draft bill. A bill was accordingly prepared by
him and it was presented in Court on May 19, 1959. Since the bill was obviously
filed beyond the period prescribed by 0. XL. r. 12 the Office returned the bill
to the Advocate. In ordinary course, the Advocate should have filed an
application requesting that the delay made in filing the bill should be
condoned, but he seems to have taken no further action in that behalf. Even so,
on May, 18, 1960, the Advocate asked for and received Rs. 200/- from his
client. It appears that Mr. Banamdar was the 'Executive Officer of respondent
No. 2 (b) when the Advocate was engaged by him, but later, Mr. Misra succeeded
to the office of the Executive Officer and the amount of Rs. 200/- was paid to
the Advocate by Mr. Misra; a receipt for this payment had also been passed. It
is difficult to understand why the Advocate asked for this amount. During the
period this client wrote to 700 the Advocate enquiring about the bill of costs
but received no reply. When Mr. Misra realised that the Advocate was taking no
action in the matter of presenting the bill of the costs and obtaining orders
thereon, he gave notice to the Advocate on January 9, 1961, discharging him
from his engagement. on January 12, 1961, he also applied to this Court to
cancel the Advocate's Vakalat and to condone the delay made in the filing of
the bill of costs. On March 1 12, 1961, the Advocate agreed that his client can
engage Mr.
Verma. The applications made by the client
for cancelling the Advocate's Vakalat and for condoning the delay made in the
filing of the bill of costs came up before the learned judge in Chambers. They
had, however, to -be adjourned from time to time in order to enable the
Advocate to appear before the learned Chamber judge. Ultimately, on January 9, 1962,
the learned judge condoned the delay made in the presentation of the bill of
costs without prejudice to the right of the judgment-debtor to plead that the
execution in respect of the bill of costs is barred by limitation.He also
ordered that the papers should be submitted to the Hon'ble the Chief justice
for taking action against the Advocate for the gross negligence shown by him in
the conduct of the proceedings in this case' The advocate was also directed to
hand over all the papers of the case to Mr. Verma.
After the papers were thus placed before the
learned Chief justice, he constituted a Tribunal consisting of three members of
the Bar under 0. IV-A r. 18 to enquire into the conduct of the Advocate. The
Tribunal then proceeded to hold an enquiry and submitted its report. The issue
which the Tribunal tried in these proceedings was whether the Advocate acted
with gross negligence in the matter of the taxation of the costs of his client
in the appeal in question, and if so, whether such conduct amounts 701 to
professional or other misconduct within the meaning of that expression in 0. IV
of the Rules. The report of the Tribunal shows that it has found against the
Advocate on both parts of the issue. In its opinion, the conduct of- the
Advocate amounts to professional misconduct as well as other misconduct within
the meaning of the said Order.
On receipt of this Report, the proceedings
have been -placed before us for final disposal under 0. IV-A r. 21 of the Rules
and the questions which fall for our decision are whether the Tribunal was
right in holding that the conduct of the Advocate amounts to professional
misconduct and other misconduct and if yes, what is the penalty which should be
imposed on the Advocate? The relevant facts which the Tribunal had to weigh in
dealing with the issue referred to it lie within a very narrow compass. It is
obvious that in filing the bill of costs on May 19, 1959, the Advocate was
guilty of gross delay. He knew that O. XL r. 12 required that the bill of costs
and vouchers had to be filed within six weeks from the date of judgment and
there is no doubt that for filing the bill of costs and vouchers it was
unnecessary to obtain any instructions from the client or secure any material
from him. The bill of costs incurred by the respondent in the proceedings
before this Court which had to be taxed were in this case all costs incurred in
this Court and if the Advocate had kept proper accounts, he would have been
able to file the bill of costs without any delay. It is true that the senior
counsel briefed by him in this case was paid his fees of Rs. 1000/- by the
client direct which incidentally. is not consistent with professional etiquette
and convention about the conduct of a senior counsel. It is to be hoped that
this departure from professional etiquette conventionally prescribed for the
senior Advocates is an exception. for if Senior Advocates were to deal 702 with
the clients direct, it would destroy the very basis of the system of Advocates
on-Record and would make it so difficult for this Court to assist the growth of
a strong, healthy and efficient junior Bar consisting of Advocates-on- record
and junior Advocates who prefer only to plead and not to act and plead. It is,
however, clear that the Advocate could have obtained a receipt from the senior
counsel without any delay and it is not suggested that the delay made by him in
filing the bill of costs had anything to do with his inability to obtain such a
receipt. In fact, the senior counsel had already sent a receipt to his client
and there is no doubt whatever that if only the Advocate had approached him for
another receipt in that behalf, the senior counsel would have immediately given
him such a receipt. Therefore, in dealing with the question of delay, we cannot
ignore the fact that the delay has been made in filing the bill of costs and
vouchers which was entirely a matter within the Advocate's knowledge. It is of
utmost importance that Advocates-on-record ought to discharge their duties by
their clients with diligence and there should be no occasion for any delay in
the filing of the bills of costs and vouchers under O. XL r. 12.
It is significant that the client repeatedly
wrote to the Advocate and enquired about the bill of costs. Four of such
letters written by the client to the Advocate have been produced in the
proceedings before the Tribunal. The Advocate explained that he sent replies to
these letters by post-cards or sometimes orally explained to the client the
position when he happened to meet him. The Tribunal was not impressed with this
explanation and thought that the conduct of the Advocate in not sending any
replies to the queries made by his client rather shows that the advocate knew
that he was at fault and he had really no answer to give in respect of the said
queries. It is also clear that after the appeal was 'decided, the Advocate was
paid by his client Rs. 60/- obviously 703 with a view to enable him to file the
bill of costs. The Tribunal has found that this amount was quite ample under
the rules and so, it is not possible to explain the delay made by the Advocate
in filing the bill of costs on the ground that he was not put in charge of
sufficient funds by his client to meet the expenses in that behalf.
A faint attempt was no doubt made by the Advocate
to show that he could not file the bill of costs in time because he did not
receive the assistance of the High Court lawyer as to the printing charges,
etc. Indeed, it does appear that the Advocate wrote a letter on May 20, 1958,
calling for some information in respect of the printing charges incurred in the
preparation of the paper books in this appeal. As the Tribunal has observed,
this plea is entirely meaningless, because the taxation of costs of the appeal
in this Court has nothing to do with the expenses incurred by the parties for
preparing the record in the High Court; and as to vouchers, the only voucher
which the Advocate had to file was the voucher from the senior counsel in
respect of the fees of Rs. 1,000/- paid to him. Therefore, there is little
doubt that the Advocate was guilty of causing gross delay in filing the bill of
costs and vouchers as required by the relevant Rule. The fact that the learned
Chamber judge was pleased to condone the delay made in presenting the bill of
costs when he was moved by Mr. Verma by a separate application made in that
behalf, does not mitigate the default on the part of the Advocate in not filing
the said bill of costs in time. Besides, as we have already seen, the delay has
been condoned without prejudice to the judgment-debtor's right to plead that
the execution is barred by the law of limitation. In case such a plea is raised
and allowed, the respondent is likely to lose a large amount of more than Rs.
2000/-. Even if the plea is not raised, or, if raised, is not allowed and the
respondent secures his costs from the 704 appellant, that would be because the
learned Chamber judge took a sympathetic view and did not wish to penalise the
party for default of his Advocate. It is in the light of these findings that we
have to decide whether the Tribunal was justified in holding that the Advocate
is guilty of professional misconduct as well as other misconduct.
It is true that mere negligence or error of
judgment on the part of the Advocate would not amount to professional
misconduct. Error of judgment cannot be completely eliminated in all human
affairs and mere negligence may not necessarily show that the Advocate who was
guilty of it can be charged with misconduct, vide In re A Vakil (1), and in the
matter of an Advocate of Agra (2) . But different considerations arise where
the negligence of the Advocate is gross. It may be that before condemning an
Advocate for misconduct, courts are inclined to examine the question as to
whether such gross negligence 'involves moral turpitude or delinquency. In
dealing with this aspect of the matter, however, it is of utmost importance to
remember that the expression "moral turpitude or delinquency" is not
to receive a narrow construction. Wherever conduct proved against an Advocate
is contrary to honesty, or opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A wilfull and callous disregard
for the interests of the client may, in a proper case, be characterised as
conduct unbefitting 'an' Advocate. In dealing with matters of professional
propriety, we cannot ignore the fact that the profession of law is an
honourable profession and it occupies a p1ace of pride in the liberal
professions of the country. Any. conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes an Advocate unfit to be
entrusted with the responsible task of looking after the interests of the
litigant, must be regarded as conduct involving moral turpitude. The (1) (1925)
I.L.R. 49 Mad. 523.
(2) I.L.R. 1940 All. 386.
705 Advocates-on-record like the other
members of the Bar Advocates are Officers of the Court and the purity of the
administration of justice depends as much on the integrity of the judges as on
the honesty of the Bar. That is why in dealing with the question as to whether
an Advocate has rendered himself unfit to belong to the brotherhood at the Bar,
the expression "moral turpitude or delinquency" is not to be
construed in an unduly narrow and restricted sense.
Besides, -it would be noticed that the
relevant rules of IV- A refer not only to professional misconduct but to other
misconduct as well. An Advocate invites disciplinary orders not only if he is
guilty of professional misconduct, but also if he is guilty of other misconduct
; and this other misconduct which may not be directly concerned with his
professional activity as I such, may nevertheless be of such a dishonourable or
infamous character as to invite the punishment due to professional misconduct
itself. An illustration in point would be the conviction of an Advocate for a
criminal offence involving moral turpitude, though it may not be connected with
his professional work as such.
Therefore, in dealing with the case of the
Advocate before us, it would not be right to take an unduly narrow view of the
concept of moral delinquency or turpitude but to concentrate on the broad issue
as to whether by his conduct proved in the present case he has not rendered
himself unworthy to be a member of the legal profession.
As early as 1894 Lopes L. J. attempted to
give the definition of misconduct of a medical man in Allinson v.
General Council of Medical Education and
Registration (1).
In that case Lopes L. J. said :
"The Master of the Rolls has adopted a
definition which, with his assistance and that of my brother Davey, I prepared.
I will read (1) [1894] 1 Q. B. 750.
706 it again. ,If it is shown that a medical
man, in the pursuit of his profession, has done something with regard to it
which would be reasonably regarded as disgraceful or dishonourable by his
professional brethern of good repute and competency, then it is open to the
General Medical Council to say that he has been guilty of 'infamous conduct in
a professional respect'." This definition was held applicable while
dealing with the case of a solicitor In re A Solicitor Ex parte the Law Society
(1). Mr. Justice Darling quoted this definition and added "that the Law
Society are very good judges of what is professional misconduct as a solicitor,
just as the General Medical Council are very good judges of what is misconduct
as a medical man." With respect, we think the same observation can be made
with equal force about the Tribunal which has dealt with this matter and made
its report in the present case.
In the matter of An Advocate (2), Mukerji, A.
C.referred to the observations made by Page J. J. In the matter of An Advocate
(3) which showed that the learned Chief Justice thought that "'in
considering whether an advocate should be struck off the roll of Advocates, the
'test. should be whether the proved misconduct of the advocate is such that he
must be regarded as unworthy to remain a -member of the honourable profession
to which he has been admitted and unfit to be entrusted with the responsible
duties that an advocate is called upon to perform "; and Mukerji, A.
C..J., added that ,,with all respect. I would prefer to take the two conditions
laid down as aforesaid disjunctively and apply the test in that way so that on
the fulfilment of any one of the conditions the test would be regarded as
satisfied." In other words, according to Mukerji A. C. T., misconduct
which would render the Advocate liable to be removed from the rolls can be (1)
[1912] 1 K. B. 302. (2) (1936) I.L.R. 63 Cal. 867.
(3) (1933) I.L.R. 12 Pan. 110, 113.
707 either professional misconduct or other
misconduct, with the result that in either case, the advocate ceases to be
entitled to belong to the honourable profession of law. The learned judge also
observed that this disjunctive test would prove a sound working rule in the
majority of cases and would be applicable to all branches of the profession. It
would be noticed that the words used in the relevant rules of O. IV-A are
professional or other misconduct and that is on the same lines as the relevant
provision in s. 10 (i) of the Indian Bar Council Act, 1926 (38 of 1926).
Reverting then to the facts found by the
Tribunal in this case, it is clear that the advocate was paid Rs. 60/-
expressly for the purpose of filing the bill of costs in time ; that the delay
made by him in presenting the bill of costs is so unreasonable that the
negligence of which he is guilty must be characterised as gross. The
explanation given by the Advocate in justification of this delay is clearly
fantastic and untrue. The, loss which would have resulted to the client is of
the order of Rs. 2000/- and it consists of an item of costs awarded to him by
this Court in dismissing the appeal filed against him. During the relevant
period, his client was repeatedly enquiring as to what had happened about the
bill of costs, and the explanation given by the Advocate in that behalf has
been rejected by the Tribunal and it must, therefore, be taken to be proved
that despite the reminders, the advocate took no steps to file the bill of
costs in time. Even so the Advocate asked for and received Rs. 200/- from Mr.
Misra, the successor of Mr. Banamdar, on May 18, 1960, and as the Tribunal has
observed, this demand by the Advocate was wholly unjustified. Having regard to
all these circumstances, we do not think it would be possible to accept Mr.
Sarjoo Prasad's contention that the Tribunal was not justified in making a
finding against the advocate that he was guilty of professional misconduct.
708 The next question which we have to consider
is: what would be the appropriate order to make in this case ? Fortunately,
cases of professional misconduct are rare in this Court ;
but when they are brought to the notice of
this Court and it is proved that the allegations made against an Advocate are
true, it would be unwise and inexpedient for this Court to take a lenient view
of the lapse of the Advocate. The members of the Bar owe it to themselves and
to the Court to live up to the best traditions of the Bar, and any serious
lapse an the part of any member of the Bar must be severely dealt with. Healthy
traditions at the Bar help not only to make the Bar strong and respected, but
render valuable and effective assistance to the Courts to deserve and sustain
the absolute confidence and faith of the litigating public in the fairness of
the administration of justice, for we must always remember that on the ultimate
analysis, the real strength of the administration of justice lies in the
confidence of the public at large. We are, therefore reluctant to accede to the
plea made before us by Mr. Sarjoo Prasad that we should reprimand the Advocate
for his misconduct and pass no further orders against him. Having carefully
considered all the relevant circumstances in this case, we are satisfied that
in the interests of the profession itself, it -is necessary to direct that the
name of the Advocate should be removed from the rolls for five years. We also
direct that the Advocate should pay the respondent's costs of the enquiry
before the Tribunal and of the hearing before us. Before we part with this
matter, we ought to add that it has been conceded before us both by Mr.
Sarjoo Prasad and by the learned
Solicitor-General that Part V of the Advocates Act, 1961 (25 of 1961) has not
still been brought into force and so, s. 50 (4) of the said Act is still not
applicable, and that means that the present proceedings have to be dealt with
by the Court in accordance with the existing law.
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