TMI Blog1988 (9) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... (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? 2. The suit was a suit for recovery of ₹ 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 At the point of time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his separate office.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 instructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Gautam Chand had business dealings 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 the seller Anantaraju calling upon him to execute the sale dead. On the same date, a notice was separately issued on behalf of the complainant Haradara addressed to Anantaraju demanding certain amounts due on the three 'self bearer cheques aggregating ₹ 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) Gaut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence 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 16.7.198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssentially 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 Advocates 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 past 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lient, 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 Disciplinary Committee would be required to approach the question as regards the 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. 5. The State Bar Council, after calling for the comments of the appellant in the context of the complaint, straightaway 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 were any issues framed or points for determination formulated. The Disciplinary Committee straightaway 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Order IV, Rule 10 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. 6. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten instructions from the complainant. It was also admitted by the complainant that he knew the defendant against whom he had filed the suit for recovery of ₹ 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. 8. 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed. 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. 10. In the order under appeal the Disciplinary Committee has addressed itself to 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 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 conjuncture, 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 pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 vexed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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