Rajendra
V. Pai Vs. Alex Fernandes & Ors [2002] Insc 188 (9 April 2002)
R.C.
Lahoti & P. Venkatarama Reddi R.C. Lahoti, J.
The
appellant, an advocate on the rolls of the Bar Council of Maharashtra and Goa, has been found guilty of professional misconduct and
by order dated 22.1.2000, passed under Section 35 of the Advocates Act, 1961,
his name has been directed to be removed from the State roll of advocates. The
appeal to the Bar Council of India preferred by the appellant has been
dismissed on 22.12.2000. Feeling aggrieved by the said two orders these appeals
have been preferred under Section 38 of the Advocates Act.
A
brief resume of the facts would suffice for the purpose of this order. It
appears that there were large scale land acquisition proceedings in the village
to which the appellant belongs. There were about 150 villagers whose lands were
involved. Some land owned by the family members of the appellant also suffered
acquisition. Inasmuch as the appellant was an advocate and also personally
interested in defending against the proposed acquisition of land belonging to
his family members, the villagers either on their own or on persuasion confided
in the appellant, who played a leading role initially in contesting the land
acquisition proceedings and later in securing the best feasible quantum of
compensation. There were around 150 claimants out of whom three only filed
complaints against the appellant which were inquired into by the Disciplinary
Committee of the State Bar Council and held proved against the appellant. The
substance of the allegations found proved is that the appellant solicited
professional work from the villagers; that he settled contingent fee depending
on the quantum of compensation awarded to the claimant; and that he identified some
claimants in opening a bank account wherein the cheque for the awarded amount
of compensation was lodged and then the amount withdrawn which identification
was later on found to be false. The gist of only relevant one out of the
several pleas taken up by the appellant before the Bar Council and pressed for
the consideration of this Court by learned counsel for the appellant is that
the entire episode points out only to rustic naivety on the part of the
appellant though an advocate. It was submitted that the appellant did not
solicit professional work as such and in fact the villagers confided in him
because of his being an advocate, also looking after litigation relating to his
family land, and the villagers had voluntarily agreed to contribute to a collective
fund raised for covering the expenses of litigation as they were likely to make
an overall saving in litigation expenses by fighting collectively as a group
and it is out of this fund that the appellant incurred expenses including those
by himself. So far as false identification in opening the bank account is
concerned the appellant acted irresponsibly when he relied on other villagers
who persuaded him to make an identification which only was acceptable to the
authorities on account of his being an advocate. This fact finds support from
the circumstance that out of little less than 150, only 3 of the litigating
landowners have filed these complaints to Bar Council. It was urged most
passionately by the learned counsel for the appellant that it was the first
fault, if at all, of the appellant and if debarred from practise for his life
at his age yet in early forties, the appellant and his family would be
completely ruined.
We
have heard the learned counsel for the parties. Ordinarily, this Court does not
interfere with the quantum of punishment in such like matters where an elected
statutory body of professionals has found their own kinsman guilty of
professional misconduct and hence not worthy of being retained in profession.
So far as the finding as to professional misconduct is concerned we cannot find
any fault or infirmity therewith and indeed learned counsel for the appellant
very wisely and fairly gave up challenge to such finding and kept himself
confined to pursuing and pressing what can be termed as a mere mercy appeal.
Debarring a person from pursuing his career for his life is an extreme
punishment and calls for caution and circumspection before being passed. No
doubt probity and high standards of ethics and morality in professional career
particularly of an advocate must be maintained and cases of proved professional
misconduct severely dealt with; yet, we strongly feel that the punishment given
to the appellant in the totality of facts and circumstances of the case is so
disproportionate as to prick the conscience of the Court. Excepting the
instance forming gravamen of the charge against the appellant there does not
appear to have been any other occasion where the appellant may have defaulted
or misconducted himself. Undoubtedly, the appellant should not have indulged
into prosecuting or defending a litigation in which he had a personal interest
in view of his family property being involved.
Though
the explanation put-forward on behalf of the appellant which has been
consistently taken before the State Bar Council, the Bar Council of India and
before this Court, may not provide a legally acceptable defence so as absolve
him from the charge of misconduct levelled against him but the same does
deserve to be taken into consideration for mellowing down the gravity of
indictment and hence for determining the quantum of punishment. In a group
litigation wherein a little less than 150 persons were involved only 3 have
found a cause for grievance inspiring them to complain against the appellant is
a factor of some relevance. It was conceded by the learned counsel for the
complainant-respondents that the complainants have not suffered any financial
loss on account of the appellant. On the totality of the facts and
circumstances of the case, in our opinion, it would meet the ends of justice if
the appellant is suspended from practise for a period of seven years. Such
sentence would satisfy the need for punishment and also act as deterrent on the
appellant and set an example to others so as to prevent recurrence of such like
incidents.
The
appeals are partly allowed. Though the finding of the appellant having been
guilty of committing professional misconduct as arrived at by the State Bar
Council and the Bar Council of India is maintained, the punishment awarded to
the appellant is modified. Instead of the name of the appellant being removed
from the State rolls of Bar Council of the State it is directed that his licence
to practise shall remain suspended for a period of seven years. Order awarding
the costs is maintained. The appeals stand disposed of in these terms. No order
as to the costs in this Court.
...............J
(R.C. LAHOTI) .....J.
(P.VENKATARAMA
REDDI) April 9, 2002.
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