TMI Blog1978 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... rsh. Sharp practice by members of noble professions deserves even disbarment. The wages of sin is death. Even so, justice has a correctional edge, a socially useful function, especially when the delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative, not cruel punishment has to be designed in the social setting of the legal profession. Law is a noble profession, true; but it is also an elitist profession. Its ethics, in practice, (not in theory, though) leave much to be desired, if viewed as a profession for the people. When the constitution under Article 19 enables professional expertise to enjoy a privilege and the Advocates Act confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. This desideratum gives the clue to the direction of the penance of a devient geared to correction. Serve the people free and expiate your sin, is the hint. Law's nobility as a profession lasts only so long as the member maintain their commitment to integrity and service to the community. Indee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) reads: The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate General an opportunity of being heard, may make any of the following orders, namely:- (a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. Sec. 37 provides an appeal to the Bar Council of India. It runs: 37(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made (under section 35) (or the Advocate General of the State) may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India. (2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order (including an order varying the punishment awarded by the disciplinary committee of the State Bar Council) thereon as it deems fit. Section 38 provides a further, final appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. With the next Independence Day we hope the appellant will inaugurate a better career and slough off old bad habits. If the appellant gives an undertaking that he will work under any official legal aid body in Tamil Nadu and convinces the Chairman of the State Legal Aid Board, Tamil Nadu, to accept his services in any specific place where currently there is an on-going project, produces a certificate in this behalf from the Board, and gives an undertaking to this Court that he will do only free legal aid for one year as reasonably directed by the Board (and shall not, during that period, accept any private engagement), his period of suspension shall stand terminated with effect from January 26, 1979. As a condition precedent to his moving this court he must pay (and produce a receipt) ₹ 2,500/- to the victim of the misconduct. Atonement cannot be by mere paper pledges but by actual service to the people and reparation for the victim. That is why we make this departure in the punitive part of our order. Innovation within the frame-work of the law is of the essence of the evolutionary process of juridical development. From that angle, we think it proper to make a correctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the decrees in question and on the other hand trying to sell the property by falsely representing that the original documents have been lost to the prospective buyers. My clients further state that you are aware of the fact that my clients are in possession of the original documents relating to the property bearing door No. 41 Shaik Daood Street, Royapeeth, Madras-14, but deliberately made false representation as aforesaid with the mala fide intention to defeat and defraud my clients' amounts due under the decree. My clients emphatically state that you cannot sell the property in question without disclosing the amounts due to them..... . It would thus appear that acting on the representations made by the appellant, the complainants called upon the debtor Smt. Maragathammal to pay the amount due under the decrees failing which they had instructed their lawyer to bring the property to sale. Actually no such suits had in fact been filed nor any decrees passed. It is argued that the finding as to professional misconduct on the part of the appellant reached by the Disciplinary Committee of the Bar Council of India is not based on any legal evidence but proceeds on mere co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainants nor had he been instructed by them to file the suits. He further pleaded that when the complainants served him with their lawyer's notice dated February 11, 1974, Ext. R-11, he went and saw the appellant who told him that he had returned the plaint, which was returned by the court, together with all the documents to the complainant Deivasenapathy as per receipt, Ext. R-7. On February 21, 1974 the complainants served another lawyer's notice on both the appellant and K. S. Lakshmi Kumaran. The appellant and K. S. Lakshmi Kumaran sent their replies to this notice. The appellant's reply, Ext. R-2, was practically his defence in the present proceedings. K. S. Lakshmi Kumaran in his reply, Ext. R-5, refers to the lawyer's notice, Ext. R-11, sent by the complainants earlier and states that when he took the notice to the appellant, he told him that the papers were taken back from him by the complainant Dievasenapathy who had passed on to him a receipt. The Disciplinary Committee, in its carefully written order, has marshalled the entire evidence in the light of the probabilities and accepted the version of K. S. Lakshmi Kumaran to be true. It observes: Earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the profession must be characterised by candour and frankness. He must keep faith with fellow members of the bar. While quite properly RD did not accept the engagement himself we are of the view that he has been party to the institution of a suit tended merely to harass the defendants in the suit, with a view to secure some benefit for the other party-manifestly unprofessional. It went on to observe: The only casualty is RD's professional ethics in what he might have thought was a gainful yet good samaritan move. When the move failed and there was no likelihood of his success, the complainants turned against him securing for their help their power of attorney. Then fear psychosis appears to have set in, leading RD to totally deny his involvement in the plaint that was filed and let down the junior whose assistance he sought. We see no other probability out of the tangled web of exaggerations, downright denials, falsehood and fabrications mingled with some truth. May be, the complainants were not actuated from a purely altruistic motive in lodging the complaint but that does not exonerate the appellant of his conduct. The suggestion that the complaint was false ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sui ceneris, are neither civil nor criminal in character, and are not subject to the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of the public, the courts and the legal profession, into fitness of the subject to continue in the capacity of an advocate. Findings in disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly fulfilled in the instant case. When 'a lawyer has been tried by his peers', in the words of our brother Desai J., there is no reason for this Court to interfere in appeal with the finding in such a domestic enquiry merely because on a reappraisal of the evidence a different view is possible. In the facts and circumstances of the case, we are satisfied that no other conclusion is possible than the one reached. There is, therefore, no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India. It is not in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate proceedings. If there was any conflict of interest and duty, he should have declined to accept the brief. What is reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never filed the suits. The appeal for mercy appears to be wholly misplaced. It is a breach of integrity and a lack of probity for a lawyer to wrongfully withhold the money of his client. In a case of such grave professional misconduct, the State Bar Council observes that the appellant deserved the punishment of disbarment, but looking to his young age, only suspended him from practice for a period of six years. The Disciplinary Committee of the Bar Council of India has already taken a lenient view and reduced the period of suspension from six years to one year, as in its view the complainants did not suffer by the suits not being proceeded with because even if they had obtained decrees for money, they would still have been required to file a regular mortgage suit for the sale of the property charged. In the facts and circumstances of the case, I am of the view that the punishment awarded by the Disciplinary Committee of the Bar Council of India does not w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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