An
Advocate Vs. B.B. Haradara & Ors [1988] INSC 308 (29 September 1988)
Thakkar,
M.P. (J) 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.
HEAD NOTE:
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suit in question had in fact been withdrawn as settled out of Court.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.
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.
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