SETTLEMENT WITH THE CLIENT DOES NOT MITIGATE OR WIPE OUT PROFESSIONAL MISCONDUCT.

[Mr. M. GOVINDARAJAN]

                        Each professional is expected by his client to be scrupulously honest and fair.   Each profession has its own code of conduct.   A professional has to follow the professional ethics.  Any client aggrieved against the professional who violates the code of conduct of his profession may make a complaint to its body. 

                        Legal profession is a noble profession.   It is not a business or a trade.   A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief making or money getting.  In ‘V.C. Rangadurai V. D. Gopalan’ –AIR 1979 SC 281 the Supreme Court held that Law’s nobility as a profession lasts only so long as the members maintain the commitment to integrity and service to the community.

                        Sec. 37(1) of the Advocates Act, 1961 provides for a remedy of an appeal to any person aggrieved against an order of the disciplinary committee of a State Bar Council under Sec. 35 to prefer an appeal to the Bar Council of India within 60 days from the date of communication of the order.  Proviso to Sec. 37(2) provides that the disciplinary committee of the Bar Council of India shall not vary the order of the disciplinary committee of the State Bar Council affecting the person prejudicially without giving him a reasonable opportunity of being heard.  The Civil Procedure Code does not apply to the proceedings of disciplinary committee.   Sec. 42 of the Act makes applicable provisions of the Code in respect of matters contained therein while providing that the disciplinary committee of a Bar Council shall have the same powers as are vested in a civil court.  Sec. 39 of the Act makes Sections 5 and 12 of the Limitation Act, 1963 applicable to the appeals preferred under Section 37 and Section 38 of the Act. 

                        In ‘Dhanraj Singh Choudhary V. Nathulal Vishwakarma’ – (2012) 204 TAXMAN 124 a complaint was made by the Nathulal Vishwakarma, the respondent in the appeal, against the advocate appellant to the Bar Council of Madhya Pradesh, Jabalpur making allegation of professional misconduct.  The main allegation is that in the sale deed dated 03.11.1999 executed by Jitendar Singh Bakna in favor of Smt. Suchi Gupta, concerning sale of a house property.   The said document was attested by the appellant.   It has been stated that on the western side of the sale property one shop adjacent to the premises in occupation of the complainant has already been transferred by the vendor to the Advocate appellant by giving him the ownership right, although the vendor’s father had entered into an agreement to sell the suit property to the complainant on 15.11.1991 for which the complainant paid Rs.2,00,000/- towards sale consideration.  The complainant further alleged that he had already filed a suit for specific performance of the agreement dated 15.11.1991 which was pending before the court and was within the knowledge of the appellant.  The appellant filed a suit on behalf against the complainant for eviction of the said shop showing the complainant as a tenant.

                        The complaint was referred to the disciplinary committee of the State Bar Council.  In his reply to the notice issued by the Disciplinary Committee the advocate appellant explained the circumstances in which the sale deed dated 03.11.1999 were executed.  He expressed his ignorance about the statement made in the sale deed regarding the sale of shop in occupation of the complainant to the advocate appellant by the vendor.  On considering the evidence tendered by both parties the Disciplinary Committee recorded its finding that the appellant advocate was guilty of professional misconduct.  The State Bar Council on the findings of the Disciplinary Committee awarded punishment of reprimand to the appellant vide its order dated 22.04.2002.

                        The complainant, being aggrieved against the order of State Bar Council, Madhya Pradesh filed an appeal under Section 37 to the Bar Council of India for enhancement of punishment to the appellant.  The appellant appeared before the disciplinary committee of the Bar Council of India.   The Disciplinary Committee of Bar Council of India after hearing both sides allowed the appeal of the complainant on 30.10.2004 and suspended the appellant from practice for a period of one year from the date of communication of the order.  After the conclusion of hearing of the appeal  the advocate appellant filed an application seeking permission to file cross appeal.   The said application was examined by the Committee and held that under Section 37 of the Advocates Act an appeal should be filed within 60 days from the date of communication of the order passed by the Disciplinary Committee of the State Bar Council.   There is however no provision for filing application seeking permission to file any appeal or cross appeal.  Therefore the application filed by the advocate seeking permission to file cross appeal cannot be entertained and the same is liable to be rejected.  The Committee dismissed the application of the advocate appellant.

                        Against this order the advocate appellant filed the present appeal before the Supreme Court.  The appellant contended that he preferred cross appeal within 30 days of the receipt of the notice of the appeal preferred by the complainant and that it is permissible under Order 41 Rule 22 of the Code of Civil Procedure, 1908 which is applicable to the proceedings before the Disciplinary Committee of the Bar Council of India.   The Supreme Court did not accept the arguments of the appellant.  The Supreme Court held that the Code has not been applicable as it is to the proceedings before the disciplinary committee.  Sec. 42 of the Act does not refer to the appeals.   Thus the provisions contained in Order 41, including Rule 22 would have no application to the proceedings before a Disciplinary Committee.  The Supreme Court further held that the there may not be any difficulty in treating the cross appeal as an appeal under Section 37 of the Act, but then such appeal is hopelessly time barred since the order was passed by the disciplinary committee of the State Bar Council on 22.04.2002.

                        The Supreme Court observed that on a question put by the Disciplinary Committee to the advocate appellant that prior to signing the sale deed in the form of witness why he did not read the said document, his reply was that he did not consider it essential to read the contents of the sale deed.  The Supreme Court astonished whether the contents of the advocate appellant could be believed.   It found that it was not only undesirable but highly unethical on the part of the advocate appellant to have created title or at least having attempted to create title in him in respect of the property for which litigation was pending in the court and he was representing one of the parties in that litigation. 

                        The appellant further submitted that the appellant did not get any benefit out of the said statement made in the sale deed, subsequently the above statement in the sale deed has been expunged on the agreement of the vendor and vendee.    He further submitted that the suspension of practice for one year was harsh.   He appealed for reduction of the suspension period.

                        The Supreme Court further found two interlocutory applications filed by the advocate appellant and the complainant jointly for disposal of the appeals in terms of the compromise between them.   The Supreme Court was unable to accede to their request.   It held that in view of the settlement with the complainant does not mitigate or wipe out professional misconduct and must not prevent adequate punishment to the advocate appellant and rejected the said interlocutory applications.

                        The Supreme Court observed that the punishment for professional misconduct has two objectives; one for deterrence and the other for correction.  To meet the above objectives the Supreme Court is of the view to suspend the advocate appellant from practice for a period of three months.