B.

Balakrishna Pillai vs The Bar Council Of India on 10 January,

2011

1. [(Note:- Sub-section (4) omitted by Act 107 of 1976, sec.6)]"

Section 36-B deals with the disposal of the disciplinary proceedings

and it reads as follows:

"36B. Disposal of disciplinary proceedings- (1) The disciplinary

committee of a State Bar Council shall dispose of the complaint
received by it under Section 35 expeditiously and in each case the
proceedings shall be concluded within a period of one year from the
date of the receipt of the complaint or the date of initiation of the
proceedings at the instance of the State Bar Council, as the case may
be, failing which such proceedings shall stand transferred to
the Bar Council of India which may dispose of the same as if it were
a proceeding withdrawn for inquiry under sub section (2) of section
36. (2) Notwithstanding anything contained in sub section (1) where
on the commencement of the Advocates (Amendment) Act, 1973, any
proceedings in respect of any disciplinary matter against an advocate
is pending before the disciplinary committee of a State Bar Council,
that disciplinary committee of the State Bar Council shall dispose of
the same within a period of six months from the date of such
complaint, or, as the case may be, the date of initiation of the
proceedings at the instance of the State Bar Council, whichever is
later, failing which such other proceeding shall stand transferred to
the Bar Council of India for disposal under sub-section."

"7. The disposal of the complaint referred here is to be by the

Disciplinary Committee; the mandate of the provisions of Section
36(1) is clearly directed to the Disciplinary Committee requiring it to
dispose of the complaint. However, the petitioner's contention was
that the words -- "in each case the proceeding shall be concluded
within a period of one year from the date of receipt of the complaint"
--in Section 36(1) are to be understood, as referring to the complaint
received by the Bar Council, and not by the Disciplinary Committee.
This overlooks the content of Section 36(1); subject matter of Section
36(1) is the disposal of the case may by the Disciplinary
Committee. Case may be referred to the Disciplinary Committee,
either on receipt of the complaint by the Bar Council or by
the Bar Council suo motu. When a case is referred by
the Bar Council suo motu (without any complaint being received by
it), then, certainly the Disciplinary Committee is given an year's time
from the date of reference to conclude the proceedings before it; this
is very clear from the words "shall be concluded within a period of
one year from the date of initiation of the proceedings at the instance
of the State Bar Council". If so, naturally, a different period of
limitation to conclude the proceedings by the Disciplinary Committee,
when it is a case of a reference of a complaint, could not have been
thought of. At any rate, a plain reading of Section 36(1) conveys the
meaning that the period of one year, is the period provided to consider
the proceedings by the Disciplinary Committee and, therefore, such a
period would commence only when the proceedings of the
Disciplinary Committee are initiated and not earlier. 8. Rule 17(2)
makes the position further clear. It reads :

"The date of receipt of the complaint or the date of the initiation of the
proceedings at the instance of the State Bar Council shall be the date
on which the State Bar Council refers the case for disposal to its
Disciplinary Committee under Section 35(1)."

Confining the above words to the instant case, Rule 17(2) would read:
"The date of receipt of the complaint..... shall be the date on which the
State Bar Council refers the case for disposal to the Disciplinary
Committee under Section 35(1)."

51. As rightly contended by the learned counsel for

the Bar Council of India, when there is no specific time limit
provided under Section 36 of the Advocate's Act, for
the Bar Council of India to pass orders, either of its own motion or
on the report, by any State Bar Council, the removal proceedings
initiated by the State Bar Council cannot be declared as deemed to
have been concluded in favour of the writ petitioner. Reading of
Section 36-B of the Advocate's Act, 1961, makes it clear that the
disciplinary committee of a State Bar Council shall dispose of the
complaint received by it, under Section 35 expeditiously and in
each case, the proceedings shall be concluded within a period of one
year from the date of the receipt of the complaint or the date of
initiation of the proceedings, at the instance of the State Bar Council,
as the case may be, failing which, such proceedings shall stand
transferred to the Bar Council of India which may dispose of the
same, as if it were a proceeding withdrawn for inquiry under sub
section (2) of section 36 of the Act.

State of Punjab v. Ram Singh,

State Of Punjab And Ors vs Ram Singh Ex. Constable on 24 July,

1992
Equivalent citations: 1992 AIR 2188, 1992 SCR (3) 634

CITATION:
1992 AIR 2188 1992 SCR (3) 634
1992 SCC (4) 54 JT 1992 (4) 253
1992 SCALE (2)76

ACT:
Civil Services : Punjab Police Manual 1934 :
Vol-II Rule 16.2(1)-Dismissal for gravest acts of
misconduct-Misconduct-What is-Police personnal on duty found
heavily drunk-Held-Misconduct.

HEADNOTE:
The respondent while working as Gunman of the Deputy
Commissioner of Police was dismissed from service by order
dated `February 11, 1980 on the charge that he was found
heavily drunk and roaming at the bus stand wearing the
service revolver. Traffic Constable brought him to the
police station and the revolver was deposited in the
malkhana. When the respondent was sent for medical
examination, he was declared as heavily drunk. An enquiry
was conducted as per prescribed procedure in this behalf and
found him to have contravened Ruled 16.2(1) of the Punjab
Police Manual 1934 Vol. 1. The Departmental appeal ended
against the respondent.
Thereon the respondent filed the suit for declaration
that the said order was null & void, unconstitutional,
illegal ultravires and opposed to the principles of natural
justice. He sought for consequential relief of
reinstatement and other benefits.
The trial Court decreed the said suit and the appeal
was affirmed stating that the order of dismissal was
vitiated by not giving reasonable opportunity due to non
supply of the documents and the disciplinary authority did
not keep in view the mandatory provisions of Rule 16.2(1) of
the Rules.
The High Court in second appeal held that the enquiry
was not vitiated but affirmed the decree on the ground, that
Rule 16.2(1) contemplates that the dismissal shall be
awarded only for the gravest acts of misconduct. Taking
drink is a single act and is not a gravest act, so the
635
Superintendent of Police was not alive to the mandate of
rule 16.2(1) which envisages dismissal only for gravest acts
of misconduct and the respondent had put in 17 years of
service and would have qualified for pension after putting
another 3 to 4 years of service and that was not kept in
view.
Granting the special leave setting aside the decree of
the courts below restoring the dismissal order, the Court,
HELD: That the word misconduct is though not capable of
precise definition, its reflection received connotation from
the context. The delinquency in performance and its effect
in the discipline and nature of duty. It may involve moral
terpitude, it must be improper or wrong behavior, unlawful
behavior willful in character, a forbidden act, a
transgression of established and definite rule of action or
Code of Conduct. But not mere error of judgment
carelessness and negligence in performance of duty. Its
ambit has to be construed as to the scope of the statute and
the public purpose it seeks to serve. The police service is
a disciplined service and its requires to maintain strict-
discipline causing serious effect in the maintenance of Law
and Order. [639 E-G] (Black's Law Dictionary Sixth Edition
P.999. P. Ramanatha Aiyer's Law Lexicon, Reprint Edition
1987 P.821 referred).
Rule 16.2(1) Consists of two parts. The first part is
referable to gravest-acts of misconduct entailing orders of
dismissal, undoubtedly there is a distinction between
gravest misconduct and grave misconduct so before awarding
the dismissal order it shall be mandatory that such order
should be made only when there are gravest acts of
misconduct and that too when it impinges the pensioner
rights of the deliquent. Thus though the first part relates
to gravest acts of misconduct but under the General Clauses
Act singular include plural acts. It is not the repetition
of the acts complained but its quality insideous effect and
gravity of situation that ensures from the offending act.
The colour of the gravest act must be gathered from the
surrounding or attending circumstances. Thus even a single
act of corruption is sufficient to+ his claim for
pension, which should only be taken into account in an
appropriate case. So the contention of the respondent that
both parts of Rule 16.2(1) must be read together appears to
be illogical 636 when the deliquent officer is proved to be incorrigible
and4
therefore unfit to continue in service. For the length of
service and his claim for pension or compulsory retirement,
it is the second part of rule which operates and thus the
very order of dismissal from service for gravest misconduct
may entail forfeithere of all the pensionary benefits.
Therefore the `word' `or' cannot be read as `and'. It must
be disinjunctive and independent. The common link that
connects both clause is "The gravest act/acts of
misconduct." [640E-641A]
The question whether the single act of heavy drinking
of Alchohol by the respondent while on duty is a gravest
misconduct. It may be stated that taking to drink by itself
may not be a misconduct but being on duty in the disciplined
service like police service and having heavy drink, then
seen roaming or wandering in the market with service
revolver and even abusing the medical officer when sent for
medical examination shows his depravity or delinquency due
to his drinking habit. Thus it would constitute gravest
misconduct warranting dismissal from service. Thus
authorities were justified in imposing the penalty of
dismissal. The Courts below failed to properly appreciate
the legal incidence and the affect of the rules. The ration
in Bhagwal Pershal v. Inspector General of Police & Ors. is
approved as the correct Law. AIR 1970 (Punjab & Haryana)
81. [641B-F]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2651 of

1992.

From the Judgment and Order dated 10.3.1989 of the Punjab and
Haryana High Court in RSA No. 1159 of 1986.

H.S. Munjral and G.K. Bansal for the Appellants. Harbans Lal and
R.S. Sodhi for the Respondent. The Judgment of the Court was
delivered by K. RAMASWAMY, J. Special leave granted.

The respondent, while working as Gunman of the Deputy

Commissioner of Police, Ropar, was dismissed from service by Order
dated February 11, 1980 by the Superintendent of Police, Ropar, on
the charge that he was found heavily drunk in the evening of
September 6, 1979 and was roaming at the bus stand wearing the
service revolver. Traffic Constable, Gurbhachan Singh, brought him
with difficulty in a jeep to the police station and the revolver was
deposited in the malkhana and sent the respondent to the Civil
Hospital for medical examination. The Doctor declared him as
heavily drunk. He also had a quarrel with the doctor on duty and
abused him. An enquiry into his conduct was conducted after
following the prescribed procedure in this behalf and found him to
have contravened Rule 16.2(1) of the Punjab Police Manual 1934,
Vol.II for short `the rule. The departmental appeals ended against the
respondent. Thereon he laid the suit for a declaration that the order of
dismissal as confirmed in the departmental appeals was null and void,
unconstitutional, illegal, ultra vires and opposed to the principles of
natural justice. He also sought for consequential relief of
reinstatement into the service with all consequential benefits. The trial
court decreed the suit. On appeal it was affirmed. The Civil Courts
found that the order of dismissal was vitiated by not giving reasonable
opportunity due to non-supply of the documents and the Inquiry
Officer cross examined the witnessses produced by the respondent.
The disciplinary authority did not keep in view the mandatory
provisions of Rule 16.2(1) of the Rules. The High Court in Second
Appeal No.1159 of 1986 dated March 10, 1989 while holding that the
respondent was supplied with the required documents and that the
enquiry was not, vitiated by cross-examination done by the Inquiry
Officer, however, affirmed the decree on the ground that Rule 16.2(1)
contemplates that "dismissal shall be awarded only for the gravest
acts of misconduct"; taking drink is a single act and it is not a gravest
act and the Superintendent of Police was not alive to the mandates of
Rule 16.2(1) which envisages dismissal only for gravest acts of
misconduct and the respondent had put in 17 years of service and
would have qualified for pension after putting in another 3 to 4 years
of service and that was not kept in view.

Sri Harbans Lal, learned Senior Counsel for the respondent, did not
canvass before us that the enquiry was vitiated for any infraction due
to non supply of the copies of the statements or the Inquiry Officers
participation in the examination of the witnesses. The finding that
there is no violation of the procedure laid down in Rule 16.2(4) and
the Government instructions dated October 16, 1972, thus remained
unquestioned. The finding that the respondent was heavily drunk on
that day while on duty and that he was caught while wandering in the
market with service revolver and when he was taken into custody by
the traffic constable and was sent to the doctor, he abused the doctor
on duty in the hospital, was not canvassed. The only question on those
facts is whether the conduct of the respondent is gravest misconduct
within the meaning of Rule 16.2(1) of the Rules, which reads thus:-
"Dismissal shall be awarded only for the gravest acts of misconduct or
as the cumulative effect of continued misconduct proving
incorrigibility and complete unfitness for police service, in making
such an award regard shall be had to the length of service of the
offender and his claim to pension." The contention of Sri Harbans Lal
is that taking alcolohic drink as such is not a misconduct. The solitary
act of drinking alcohol per se is not gravest misconduct. The
respondent had put in 17 years unblemished record of service. Had he
not been dismissed from service within two or three years, he would
have qualified for pension; without taking these factors into
consideration, the disciplinary authority or the appellate authorities
have violated the mandatory requirements. Therefore, awarding the
punishment of dismissal from service is vitiated by manifest error of
law violating Rules 16.2(1) of the Rules.

Misconduct has been defined in Black's Law Dictionary, Sixth

Edition at page 999 thus :-

"A transgression of some established an definite rule of action, a

forbidden act, a dereliction from duty, unlawful behavior, willful in
character, improper or wrong behavior, its synonyms are
misdemeanor, misdeed, misbehavior, delinquency, impropriety,
mismanagement, offence but not negligence or care-lessness."

Misconduct in office has been defined as :

"Any unlawful behavior by a public officer in relation to the duties of

his office, willful in character. The term embraces acts which the
office holder had no right to perform, acts performed improperly, and
failure to act in the face of an affirmative duty to act."

P. Ramanatha Aiyar's the Law Lexicon, Reprint Edition 1987 at p.821

`misconduct' defines thus:-

"The term misconduct implies a wrongful intention, and not a mere

error of judgment. Misconduct is not necessarily the same thing as
conduct involving moral turpitude. The word misconduct is a relative
term, and has to be construed with reference to the subject matter and
the context wherein the term occurs, having regard to the scope of the
Act or statute which is being construed. Misconduct literally means
wrong conduct or improper conduct. In usual parlance, misconduct
means a transgression of some established and definite rule of action,
where no discretion if left, except what necessity may demand and
carelessness, negligence and unskilfulness are transgressions of some
established, but indifinite, rule of action, where some discretion is
necessarily left to the actor. Misconduct is a violation of definite law;
carelessness or abuse of discretion under an indefinite law.
Misconduct is a forbidden act; carelessness, a forbidden quality of an
act, and is necessarily in definite.

Misconduct in office may be defined as unlawful behaviour or neglect

by a public officer, by which the rights of a party have been affected."

Thus it could be seen that the word `misconduct' though not capable
of precise definition, on reflection receives its connotation from the
context, the delinquency in its performance and its effect on the
discipline and the nature of the duty. It may involve moral turpitude,
if must be improper or wrong behaviour; unlawful behaviour, willful
in character; forbidden act,a transgression of established and definite
rule of action or code of conduct but not mere error of judgment,
carelessness or negligence in performance of the duty; the act
complained of bears forbidden quality or character. Its ambit has to be
construed with reference to the subject matter and the context wherein
the term occurs, regard being had to the scope of the statute and the
public purpose it seeks to serve. The police service is a disciplined
service and it requires to maintain strict discipline. Laxity in this
behalf erodes discipline in the service causing serious effect in the
maintenance of law and order.

Rule 16.2(1) consists of two parts. The first part is referable to gravest
acts of misconduct which entails awarding an order of dismissal.
Undoubtedly there is distinction between gravest misconduct and
grave misconduct. Before awarding an order of dismissal it shall be
mandatory that dismissal order should be made only when there are
gravest acts of misconduct, since it impinges upon the pensionary
rights of the deliquent after putting long length of service. As stated
the first part relates to gravest acts of misconduct. Under general
clauses Act singular includes plural, act includes acts. The contention
that there must be plurality of acts of misconduct to award dismissal
is festidious. The word "acts" would include singular "act" as well. It
is not the repetition of the acts complained of but its quality, insideous
effect and gravity of situation that ensues from the offending `act'.
The colour of the gravest act must be gathered from the surrounding
or attending circumstances. Take for instance the delinquent that put
in 29 years of continuous length of service and had unblemished
record; in 30th year he commits defalcation of public money or
fabricates false records to conceal misappropriation. He only
committed once. Does it mean that should not be inflicted with the
punishment of dismissal but be allowed to continue in service for that
year to enable him to get his full pension. The answer is obviously no.
Therefore, a single act of corruption is sufficient to award an order of
dismissal under the rules as gravest act of misconduct.

The second part of the rule connotes the cumulative effect of

continued misconduct proving incorrigibility and complete unfitness
of police service and that the length of service of the offender and his
claim for pension should be taken into account in an appropriate case.
The contention that both parts must be read together appears to us to
be illogical. Second part is referable to a misconduct of minor in
character which does not by itself warrant an order of dismissal but
due to continued acts of misconduct would have insidious cumulative
effect on service morale may be a ground to take lenient view of
giving an opportunity to reform. Despite giving such opportunities if
the delinquent officer proved to be incorrigible and found complete
unfit to remain in service than to maintain discipline in the service,
instead of dismissing the delinquent officer, a lesser punishment of
compulsory retirement or demotion to a lower grade or rank or
removal from service without affecting his future chances of re-
employment, if any, may meet the ends of justice. Take for instance
the deliquent officer who is habitually absent from duty when
required. Despite giving an opportunity to reform himself he
continues to remain absent from duty off an on. He proved himself to
be incorrigible and thereby unfit to continue in service. Therefore,
taking into account his long length of service and his claim for
pension he may be compulsorily retired from service so as to enable
him to earn proportionate pension. The second part of the rule
operates in that area. It may also be made clear that the very order of
dismissal from service for gravest misconduct may entail forfeiture of
all pensionary benefits. Therefore, the word `or' cannot be read as
"and". It must be disjunctive and independent. The common link that
connects both clauses is "the gravest act/acts of misconduct".

The next question is whether the single act of heavy drinking of

alcohol by the respondent while on duty is a gravest misconduct. We
have absolutely no doubt that the respondent, being a gunman having
service revolver in his possession, it is obvious that he was on duty;
while on duty he drunk alcohol heavily and became uncontrollable.
Taking to drink by itself may not be a misconduct. Out of office hours
one may take to drink and remain in the house. But being on duty in a
disciplined service like police service, the personnel shall maintain
discipline and shall not resort to drink or be in a drunken state while
on duty. The fact is that the respondent after having had heavy drink,
was seen roaming or wandering in the market with service revolver.
When he was sent to the doctor for medical examination he abused
the medical officer on duty which shows his depravity or delinquency
due to his drinking habit. Thus it would constitute gravest misconduct
warranting dismissal from service. The authorities, therefore, were
justified in imposing the penalty of dismissal. The courts below failed
to properly appreciate the legal incidence and the affect of the rules.

The ratio relied on by learned counsel for the respondent in Gurdev

Singh v. State of Haryana & Ors., (1976) 2 S.L.R. 443; Rattan Lal Ex-
Constable v. State of Haryana & Ors., (1983) 2 SLR 159 and Sukhdev
Singh v. State of Punjab & Ors., (1983) 2 SLR 645 turned on their
peculiar facts and would render little assistance to the respondent. We
approve the ratio in Bhagwat Parshad v. Inspector General of Police,
Punjab & Ors., AIR 1970 (Punj. & Har.) 81 as correct law.

The appeal is accordingly allowed. The decree of the courts below is

set aside and the dismissal order is restored. But in the circumstances,
parties are directed to bear their own costs throughout.

S.B. Appeal allowed.

'misconduct' may involve moral turpitude, it amounts to improper or

wrong behaviour, unlawful behaviour, willful in character, a
forbidden act, a transgression of established and definite rule of action
or code of conduct but a not mere error of judgment, carelessness
or negligence in the performance of the duty; the act complained of
bears forbidden quality or character.

The legal profession has some set standards of conduct, professional

ethics (laid done by Bar Council of India) to which an advocate is
bound to follow befitting the profession. In the case of V.C Ranga
Durai v. D. Gopalan, the Supreme Court specified that an advocate
who is entrusted with a brief must follow the norms of professional
ethics and must also protect the best interest of their clients. Section
35 of the Advocates Act, 1961 states that an advocate may be
punished for professional misconduct or other misconduct. Section 35
empowers the Bar Council and the State Bare Council that if there is
proven misconduct then both council has the power to punish such
advocate.

V. C. Rangadurai vs D. Gopalan And Ors on 4 October, 1978

Equivalent citations: 1979 AIR 281, 1979 SCR (1)1054
Author: V Krishnaiyer
Bench: Krishnaiyer, V.R.
 PETITIONER:
V. C. RANGADURAI

Vs.

RESPONDENT:
D. GOPALAN AND ORS.

DATE OF JUDGMENT04/10/1978

BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
SEN, A.P. (J)

CITATION:
1979 AIR 281 1979 SCR (1)1054
1979 SCC (1) 308
CITATOR INFO :
R 1983 SC 990 (10)
R 1985 SC 28 (30)

ACT:
Judicial legislation, meaning of-Punishment under Sec.
35(3) of the Advocates Act, 1961, applying the principle of
legislation.
Appeal-Appeal under Sec. 38 of the Advocates Act, 1961,
interference of the Supreme Court.
Disciplinary proceedings-Disciplinary proceedings under
the Advocates Act, 1961-Nature and proof of.
Professional ethics of a member of legal fraternity-
Relations between a lawyer and a client explained.
HEADNOTE:
The appellant was found guilty of gross professional
misconduct by the Disciplinary Committee II of the State Bar
Council, Tamil Nadu and was therefore, debarred from
practice as an Advocate for a period of six years. In
appeal, the Bar Council of India upheld the said findings
but reduced the period of suspension to one year.
Dismissing the appeal, the Court
Per Iyer, J. (on behalf of Desai, J. and himself)
^
HELD: 1. Punishment has a functional duality-deterrence
and correction. But conventional penalties have their
punitive limitations and flaws, viewed from the reformatory
angle. A therapeutic touch, a correctional twist, and a
locus penitentiae, may have rehabilitative impact if only
Courts may experiment unorthodoxly but within the parameters
of the law. [1057 F-G; 1058 E]
When the Constitution under Art. 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 changethe existing order into a Human
Tomorrow. [1058 B-C]
Justice has 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. Punishment for
professional misconduct is no exception to this 'social
justice' test. [1058 A, E]
In the present case, therefore, the deterrent component
of the punitive imposition persuades non-interference with
the suspension from practice reduced 'benignly at the
appellate level to one year. From the correctional angle a
gesture from the Court may encourage the appellant to turn a
new page. He is
1055
not too old to mend his ways. He has suffered a litigative
ordeal, but more importantly he has a career ahead. To give
him an opportunity torehabilitate himself by changing his
ways, resisting temptations and atoning for the serious
delinquency, by a more zealous devotion to people's
cause
like legal aid to the poor may be a step in the correctional
direction.[1058 E-G]
2. Judicial legislation is not legislation but
application of a given legislation to new or unforeseen
needs and situations broadly falling within the statutory
provision. In that sense, interpretation is inescapably a
kind of legislation. Legislation is not legislation stricto
sensu but application and is within the Court's province. So
viewed the punishment of suspension under Sec. 35(3) of the
Advocates Act serves two purposes-injury and expiation. The
ends of justice will be served best in this case by
directing suspension plus a provision for reduction on an
undertaking to this Court to serve the poor for a year. Both
are orders within this Court's power [1060 F-H]
3. Section 35(3) has a mechanistic texture, a set of
punitive pigeon holes, but words grow in content with time
and circumstance, that phrases are flexible in semantics and
the printed text is a set of vessels into which the Court
may pour appropriate judicial meaning. That statute is sick
which is allergic to change in sense which the times demand
and the text does not countermand. That Court is superficial
which stops with the cognitive and declines the creative
function of construction. 'Quarrying' more meaning is
permissible out of Sec. 35(3) and the appeal provisions in a
brooding background of social justice sanctified by Art. 38
and of free legal aid enshrined by Art. 39A of the
Constitution.
[1059 A-B]
Per Sen (J)
 In an appeal under Sec. 38 of the Advocates Act, 1961
the Supreme Court would not, as a general rule interfere
with the concurrent findings of fact by the Disciplinary
Committee, Bar Council of India and the State Bar Council
unless the findings is based on no evidence or it proceeds
on mere conjecture and unwarranted inferences. [1066 G-H]
When 'a lawyer has been tried by his peers' the Supreme
Court cannot interfere in an appeal with the finding in such
a domestic enquiry merely because on a re-appraisal of the
evidence a different view is possible. In the facts and
circumstances of the case, no other conclusion is possible
than the conclusion reached. There is, therefore no ground
for interference with the finding of the Disciplinary
Committee of the Bar Council of India. [1067 C-D]
2. Disciplinary proceedings before the State Bar
Council are sui generis, 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.
[1067-A-B]
3. It is not in accordance with professional etiquette
for one advocate to hand over his brief to another to take
his place at a hearing (either for the whole or
1056
part of the hearing), and conduct the case as if the latter
had himself been briefed, unless the client consents to this
course being taken. Counsel's paramount duty is to the
client; accordingly where he forms an opinion that a
conflict of interest exists, his duty is to advise the
client that he should engagesome other lawyer. It is
unprofessional to represent conflicting interests, except by
express consent given by all concerned after afull
disclosure of the facts.
[1067 D-E]
In the instant case, if there was any conflict of
interest and duty the appellant 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 but in a frantic effort to save
himself, he threw the entire blame on his junior. [1068 B-C]
Nothing should be done by any member of the legal
fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and
integrity of the profession. The relation between a lawyer
and his client is highly fiduciary in its nature and of a
very delicate, exacting, and confidential character
requiring a high degree of fidelity and good faith. It is
purely a personal relationship, involving the highest
personal trust and confidence which cannot be delegated
without consent. A lawyer when entrusted with a brief, is
expected to follow the norms of professional ethics and try
to protect the interests of his clients, in relation to whom
he occupies a position of trust. The appellant completely
betrayed the trust reposed in him by the complainants in
this case.
[1067 F, G-H; 1068 A]
4. The punishment awarded by the Disciplinary Committee
of the Bar Council of India does not warrant any further
interference. In a case like this, the punishment has to be
deterrent. Any appeal for mercy is wholly misplaced. It is a
breach of integrity and a lack of probity for a lawyer to
wrongfully with hold the money of his client and there was
in this case complete lack of candour on the part of the
appellant. [1068 D, F]
(per contra)
 (a) Where it is shown that the advocate acted in bad
faith towards his client in detaining or misappropriating
funds of the client, or that the wrong was committed or
aided by means of false representations, fraud or deceit,
the fact that the advocate makes restitution to or
settlement with the client will not prevent disbarment
especially where restitution was not made until after the
commencement of the disciplinary proceedings. It is only an
ameliorating circumstance but does not mitigate the offence
involved in the misappropriation particularly when the
repayment is made under pressure. [1068 H, 1069 A]
(b) When there is disbarment or suspensionfrom
practice, the lawyer must prove, if he can, after the
expiration of a reasonable length of time, that he
appreciates the significance of his dereliction, that he
possesses the good character necessary to guarantee
uprightness and honour in his professional dealings, and
therefore is worthy to be restored. The burden is on the
applicant to establish that he is entitled to resume the
privilege of practising law without restrictions. There is
nothing of the kind in the present case. Even if the Supreme
Court has the power to make such a direction, in terms of S.
38, the Court has a duty to act with justice to the
profession and the public as well as the appellant seeking
reinstatement, and without regard to mere feelings of
sympathy for the applicant. Feelings of sympathy or a
feeling that the lawyer has been sufficiently punished are
not grounds for reinstatement. [1068 B-D]
1057
(c) A direction requiring the advocate to undertake
free legal aid during the period of his suspension would be
a contradiction in terms. Under s. 35(4), when an advocate
is suspended from practice under cl. (c) of sub-s. (3)
thereof, he shall, during the period of suspension be
debarred from practising in any court or before any
authority or person in India. If the making of such a
direction implies the termination of the order of
suspension, on the fulfilment of the conditions laid down,
no restriction on the right of the advocate to appear before
any Court or authority, which privilege he enjoys under s.
30 of the Act, can be imposed.[1069 D-F]
The Court directed:
(i) the appellant to pay a sum of Rs. 2,500/- to the
victim of the misconduct and produce a receipt (ii) give an
undertaking as directed viz., accepting the suspension from
practice upto 14th August 1979 and willingness to undertake
work under any legal aid body in Tamil Nadu and convince the
Chairman of that Board to accept his services in any
specific place where currently there is an on going project,
produce a certificate in this behalf from the Board and
(iii) agree to do only free legal and for one year as
reasonably directed by the Board (and shall not during that
period accept any private engagement) so that the period of
suspension shall stand terminated with effect from January
26, 1979.
[1061 A-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 839 of

1978.

From the Judgment and Order dated 11-3-1978 of the Disciplinary

Committee of the Bar Council of India, New Delhi D.C. Appeal No.
14/75.

G. L. Sanghi and A. T. M. Sampath for the Appellant. Nemo for the

Respondent.

The following Judgments were delivered KRISHNA IYER, J.-We

agree wholly with our learned brother Sen, J., that the appellant is
guilty of gross professional misconduct and deserves condign
punishment. But conventional penalties have their punitive limitations
and flaws, viewed from the reformatory angle. A therapeutic touch, a
correctional twist, and a locus penitentiae, may have rehabilitative,
impact, if only we may experiment unorthodoxly but within the
parameters of the law. Oriented on this approach and adopting the
finding of guilt, we proceed to consider the penalty, assuming the
need for innovation and departing from wooden traditionalism.

A middle-aged man, advocate by profession, has grossly

misconducted himself and deceived a common client. Going by
precedent, the suspension from practice for one year was none too
harsh. 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.
Indeed, the monopoly conferred on the legal profession by Parliament
is coupled with a responsibility-a responsibility towards the people,
especially the poor. Viewed from this angle, every delinquent who
deceives his common client deserves to be frowned upon. This
approach makes it a reproach to reduce the punishment, as pleaded by
learned counsel for the appellant.
But, as we have explained at the start, every punishment, however,
has a functional duality-deterrence and correction. Punishment for
professional misconduct is no exception to this 'social justice' test. In
the present case, therefore, from the punitive angle, the deterrent
component persuades us not to interfere with the suspension from
practice reduced 'benignly' at the appellate level to one year. From the
correctional angle, a gesture from the Court may encourage the
appellant to turn a new page. He is not too old to mend his ways. He
has suffered a litigative ordeal, but more importantly he has a career
ahead. To give him an opportunity to rehabilitate himself by changing
his ways, resisting temptations and atoning for the serious
delinquency, by a more zealous devotion to people's causes like legal
aid to the poor, may be a step in the correctional direction.

Can these goals be accommodated within the scheme of the statute?

Benignancy beyond the bounds of law are not for judges to try.

Speaking frankly, Sec. 35(3) has a mechanistic texture, a set of

punitive pigeon holes, but we may note that words grow in content
with time and circumstance, that phrases are flexible in semantics,
that the printed text is a set of vessels into which the court may pour
appropriate judicial meaning. That statute is sick which is allergic to
change in sense which the times demand and the text does not
countermand. That court is superficial which stops with the cognitive
and declines the creative function of construction. So, we take the
view that 'quarrying' more meaning is permissible out of Sec. 35(3)
and the appeal provisions, in the brooding background of social
justice, sanctified by Art. 38, and of free legal aid enshrined by Art.
39A of the Constitution.

"A statute rarely stands alone. Back of Minerva was the brain of Jove,
and behind Venus was the spume of the ocean."
(The Interpretation and Application of Statutes-Read Dickerson p.
103) Back to the Act. Sec. 35(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 to the Supreme Court in

these terms:

"Any person aggrieved by an order made by the disciplinary

committee of the Bar Council of India under section 36 or Section
37 (or the Attorney General of India or the Advocate General of the
State concerned, as the case may be) may, within sixty days of the
date on which the order is communicated to him, prefer an appeal to
the Supreme Court and the Supreme Court may pass such order
(including an order varying the punishment awarded by the
disciplinary committee of the Bar Council of India) thereon as it
deems fit." Section 35(3) (c) enables suspensions of the advocate-
whether conditionally or absolutely, it is left unclear. Section 37 (2)
empowers the Bar Council of India widely to 'pass such order as it
deems fit.' And the Supreme Court, under Sec. 38 enjoys ample and
flexible powers to 'pass such order.. as it deems fit'.

Wide as the power may be, the order must be germane to the Act and
its purposes, and latitude cannot transcend those limits. Judicial
'Legisputation' to borrow a telling phrase of J. Cohen, is not
legislation but application of a given legislation to new or unforeseen
needs and situations broadly falling within the statutory provision. In
that sense, 'interpretation is inescapably a kind of legislation'. This is
not legislation stricto sensu but application, and is within the court's
province.

We have therefore sought to adapt the punishment of suspension to

serve two purposes-injury and expiation. We think the ends of justice
will be served best in this case by directing suspension plus a
provision for reduction on an undertaking to this court to serve the
poor for a year. Both are orders within this court's power.

Tamil Nadu has a well-run free legal aid programme with which the
Governor and Chief Justice of the State are associated. The State
Legal Aid Board, working actively with two retired Judges of the
High Court at the head, may use the services of the appellant keeping
a close watch on his work and relations with poor clients, if he applies
to the Legal Aid Board for giving him such an opportunity, after
getting this court's order as provided below. Independently of that, as
a token of our inclination to allow the appellant to become people-
minded in his profession, we reduce the suspension from practice upto
the 14th of August 1979. 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) Rs. 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 correctional experiment as a super-addition
to punitive infliction. Therefore, we make it clear that our action is
less a precedent than a portent.

With the modification made above, we dismiss the appeal.

SEN, J.-This appeal under section 38 of the Advocates Act, 1961 by

V. C. Rangadurai is directed against an order of the Disciplinary
Committee of the Bar Council of India dated March 11, 1978
upholding the order of the Disciplinary Committee-II of the State Bar
Council, Madras dated May 4, 1975 holding him guilty of
professional misconduct but reducing the period of suspension from
practice to one year from six years.

There can be no doubt that the appellant had duped the complainants,
T. Deivasenapathy, an old deaf man aged 70 years and his aged wife
Smt. D. Kamalammal by not filing the suits on two promissory notes
for Rs. 15,000/- and Rs. 5,000/- both dated August 26, 1969 executed
by their land-lady Smt. Parvathi Ammal, who had borrowed Rs.
20,000/- from them, by deposit of title deeds.

Admittedly, though the plaint for recovery of the amount due on the
promissory note for Rs. 15,000/- with interest thereon bearing court
fee of Rs. 1,519.25 was returned for presentation to the proper court,
it was never re-presented. It is also not denied that though the
appellant had drafted the plaint for recovery of Rs. 5,000/- with
interest no such suit was ever filed. In spite of this, the appellant made
false representations to the complainants Deivasenapathy (P.W. 1),
his wife Smt. Kamalammal (P.W. 3) and the power of attorney agent
of the complainants, D. Gopalan (P.W. 2) that the suits had been filed
and were pending, gave them the various dates fixed in these two
suits, and later on falsely told them that the court had passed decrees
on the basis of the two promissory notes. On the faith of such
representation the complainants served a lawyer's notice dated
December 25, 1973 (Ext. P-3) on the debtor Smt. Maragathammal, to
the effect:

"That you are aware of my clients' filing two suits against you for
recovery of Rs. 15,000/- and Rs. 5,000/- with due interest and cost
thereon and it is not to state that both the suits were decreed as prayed
for by my clients in the court proceedings. My clients further say that
in spite of the fact that the suits had been decreed long ago you have
not chosen to pay the amount due under 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 conjectures. It is pointed out that the ultimate conclusion of the
Disciplinary Committee cannot be reconciled with its earlier
observation that it was not prepared to attach any credence to the
conflicting assertion of Deivasenapathy that he had at first handed
over Rs. 855/- on December 2, 1970 for filing the suit on the
promissory note for Rs. 5,000/- and then paid Rs. 2,555/- some time
in July 1972 for filing the suit on the promissory note for Rs. 15,000/-
which is in conflict with the allegation in the lawyer's notice dated
February 21, 1974 (Ext. R-1) that a sum of Rs. 3,410/- was paid on
July 17, 1972 to wards court fees and expenses for the filing of the
two suits, or that the various dates marked in the copies of the two
plaints, Ext. P-1 and Ext. P-2, were indeed given by him. It is urged
that the Disciplinary Committee was largely influenced by the fact
that the appellant gave the receipt, Ext. R-7 to K.S. Lakshmi
Kumaran, which was found to be forged. In view of the discrepancies
in the testimony of Deivasenapathy, P.W. 1, Smt. Kamalammal, P.W.
3 and their agent, D. Gopalan, P.W. 2, it was evident that the
Disciplinary Committee mainly based the charge of misconduct on
mere suspicion. Lastly, it is said that the complaint was a false one
and was an attempt to pressurize the appellant to persuade his client
Smt. Maragathammal to sell the house to the complainants. We are
afraid, the contentions cannot be accepted.

In denial of the charge the appellant pleaded that though he had

drafted the plaint in the suit to be filed on the basis of the promissory
note for Rs. 5,000/-, he felt that as the debtor Smt. Maragathammal
had consulted him in another matter, it would be better that the
complainants engaged some other counsel and he advised them
accordingly. He suggested the names of two or three lawyers out of
whom, the complainants engaged K. S. Lakshmi Kumaran. He denied
that the two promissory notes were handed over to him or that he had
received any amount by way of court fees or towards his fees.
According to him, K.S.Lakshmi Kumaran was, therefore. instructed to
file the suits.

K. S. Lakshmi Kumaran, on the other hand, pleaded that he knew

nothing about the suits but had in fact signed the Vakalat as a
Junior counsel, as a matter of courtesy at the behest of the appellant.
He pleaded that he had never met the complainants 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:

"Earlier we referred to the conflict between the two advocates. We

cannot help observing that we feel there is want of candour and
frankness on the part of RD. On a careful consideration of the
evidence we see no reason to reject the evidence of L that he merely
signed the Vakalat and plaint and when the plaint was returned he
took the return and passed on the papers to RD."

It then concludes stating:

"On an overall view of the evidence we hold that L was not directly
engaged by the parties and that when the plaint with its annexures was
returned, L passed it on to RD. We also accept L's evidence that when
on receipt of the notice Ext. R-11 he met RD he was informed that the
case papers were taken back by P.W. 1 and that some time afterwards
RD gave him the receipt Ext. R-7..............
It must be, that when the complainants turned against RD suspecting
his bona fide he denied having had anything to do in the matter and
threw up his junior colleague in the profession stating that he passed
the clients no to L and had nothing more to do with the case. As the
clients had no direct contact with L his statement that he handed over
the plaint on its return to RD looks probable and likely. We accept it.
When a notice was issued to him in the matter he went to RD and RD
gave him the receipt Ext. R-7. The receipt purports to be signed by
Deivasenapathy and accepted it for what it was worth."

In that view, both advocates were found guilty of professional

misconduct, but differing in character and different in content. In
dealing with the question, it observes:

"As regards RD, the litigants entrusted the briefs to him whatever
their motive. The record does not establish that before entrusting the
case to L the complainants were introduced by RD to L and L was
accepted by them as counsel in charge of the case."

It condemned both the advocates for their dereliction of duty, but only
reprimanded K. S. Lakshmi Kumaran, the junior advocate, because he
never knew the complainants and had signed the vakalat at the
bidding of the appellant, but took a serious view of the misconduct of
the appellant, and castigated his whole conduct in no uncertain terms,
by observing:

"Finding himself in difficulties RD miserably failed in his duty to his

fellow advocate very much junior to him in the profession and who
trusted him. The conduct of a lawyer to his brothers 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
one and constituted an attempt at blackmail is not worthy of
acceptance. The property was actually sold to M. M. Hanifa for Rs.
36,000 by registered sale deed dated August 1, 1974, while the
complaint was filed in April 1974. We do not see how the initiation of
the proceedings would have pressurised the appellant to compel his
client Smt. Maragathammal to part with the property for Rs. 20,000/-
the price offered by the complainants. It is no doubt true that at one
stage they were negotiating for the purchase of the house of which
they were the tenants but the price offered by them was too low. The
Disciplinary Committee of the Bar Council of India summoned the
purchaser and he stated that from December 1973, he had been trying
to purchase the property. It is also true that in response to the notice
dated August 1, 1974 served by the purchaser asking the complainants
to attorn to him, they in their reply dated August 8, 1974 expressed
surprise that he should have purchased the property for Rs. 36,000/-
when in fact it was not worth more than Rs. 26,000/-

It matters little whether the amount of Rs. 3,410/- was paid to the
appellant in a lump sum or in two instalments. Deivasenapathy, P.W.
1 faltered when confronted with the notice Ext. R-1 and the
Disciplinary Committee of the Bar Council of India has adversely
commented on this by saying that he is not 'an illiterate rustic' but is
an M.I.S.E., a retired Civil Engineer. This by itself does not
disapprove the payment of the amount in question. It may be the
general power of attorney, D. Gopalan, P.W. 2, made a mistake in
instructing the counsel in giving the notice. As regards the various
dates appearing on the copies of the two plaints, Exts. P-1 and P-2,
the complainants could not have got these dates by themselves unless
they were given by the appellant.
In an appeal under section 38 of the Act, this Court would not, as a
general rule, interfere with the concurrent finding of fact by the
Disciplinary Committee of the Bar Council of India and of the State
Bar Council unless the finding is based on no evidence or it proceeds
on mere conjecture and unwarranted inferences. This is not the case
here.

Under the scheme of the Act, the disciplinary jurisdiction vests with
the State Bar Council and the Bar Council of India.
Disciplinary proceedings before the State Bar Council are 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 accordance with professional etiquette for one advocate to

hand over his brief to another to take his place at a hearing (either for
the whole or part of the hearing), and conduct the case as if the latter
had himself been briefed, unless the client consents to this course
being taken. Council's paramount duty is to the client; accordingly
where he forms an opinion that a conflict of interest exists, his duty is
to advise the client that he should engage some other lawyer. It is
unprofessional to represent conflicting interests, except by express
consent given by all concerned after a full disclosure of the facts.

Nothing should be done by any member of the legal fraternity which

might tend to lessen in any degree the confidence of the public in the
fidelity, honesty and integrity of the profession. Lord Brougham, then
aged eighty-six, said in a speech, in 1864, that the first great quality of
an advocate was 'to reckon everything subordinate to the interests of
his client'. What he said in 1864 about 'the paramountcy of the client's
interest'. is equally true today. The relation between a lawyer and his
client is highly fiduciary in its nature and of a very delicate, exacting,
and confidential character requiring a high degree of fidelity and good
faith. It is purely a personal relationship, involving the highest
personal trust and confidence which cannot be delegated without
consent. A lawyer when entrusted with a brief, is expected to follow
the norms of professional ethics and try to protect the interests of his
clients, in relation to whom he occupies a position of trust.
The appellant completely betrayed the trust reposed in him by the
complainants.

It is needless to stress that in a case like this the punishment has to be

deterrent. There was in this case complete lack of candour on the part
of the appellant, in that he in a frantic effort to save himself, threw the
entire blame on his junior, K. S. Lakshmi Kumaran. The evidence on
record clearly shows that it was the appellant who had been engaged
by the complainants to file suits on the two promissory notes for
recovery of a large sum of Rs. 20,000/- with interest due thereon.
There was also complete lack of probity on the part of the appellant
because it appears that he knew the debtor, Smt. Maragathammal for
7/8 years and had, indeed, been appearing for her in succession
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 warrant any further interference.

I have had the advantage of reading the judgment of my learned

brother Krishna Iyer for the restitution to the appellant of his right to
practice upon fulfilment of certain conditions. I have my own
reservations in the matter, that is, whether any such direction should
at all be made in the present case.

Where it is shown that the advocate acted in bad faith towards his
client in detaining or misappropriating funds of the client, or that the
wrong was committed or aided by means of false representations,
fraud or deceit, as here, the fact that the advocate makes restitution
to or settlement with the client will not prevent disbarment, especially
where restitution was not made until after the commencement of the
disciplinary proceedings. It is only an ameliorating circumstance but
does not mitigate the offence involved in the misappropriation,
particularly when the repayment is made under pressure.

When there is disbarment or suspension from practice, the lawyer

must prove, if he can, after the expiration of a reasonable length of
time, that he appreciates the significance of his dereliction, that he has
lived a consistent life of probity and integrity, and that he possesses
the good character necessary to guarantee uprightness and honour in
his professional dealings, and therefore is worthy to be restored. The
burden is on the applicant to establish that he is entitled to resume the
privilege of practising law without restrictions. There is nothing of the
kind in the present case.

Further, even if this Court has the power to make such a direction. in
terms of s. 38, the Court has a duty to act with justice to the
profession and the public as well as the appellant seeking
reinstatement, and without regard to mere feelings of sympathy for
the applicant. Feelings of sympathy or a feeling that the lawyer has
been sufficiently punished are not grounds for reinstatement.

I also doubt whether a direction can be made requiring the advocate to

undertake free legal aid during the period of his suspension. This
would be a contradiction in terms. Under s. 35(4), when an advocate
is suspended from practice under cl.(c) of sub-s. (3) thereof, he shall,
during the period of suspension, be debarred from practising in any
court or before any authority or person in India. If the making on such
a direction implies the termination of the order of suspension, on the
fulfilment of the conditions laid down, I am of the considered view
that no restriction on the right of the advocate to appear before any
court or authority, which privilege he enjoys under s. 30 of the Act,
can be imposed.

The taking, of too lenient a view in the facts and circumstances of the
case, I feel, would not be conducive to the disciplinary control of the
State Bar Councils. I would, for these reasons, dismiss the appeal and
maintain the punishment imposed on the appellant.

In conclusion, I do hope the appellant will fully reciprocate the noble

gesture shown to him by the majority, come up to their expectations
and turn a new leaf in life. It should be his constant endeavour to keep
the fair name of the great profession to which he belongs unsullied.

S.R. Appeal dismissed.

4.1 Professional Negligence: an advocate is expected to exercise
reasonable skills and prudence and should not be negligent. In
order to constitute misconduct, the negligence must be
suppression of truth or deliberate misrepresentation of facts.
Mohd. Ismail v. Balarathna, the constitutional court held that if an
advocate neglects to furnish requisite documents or material
papers despite repeated adjournments, it should amount to
misconduct.

Mana Mohamed Ismail vs V. Balarathnam on 16 October, 1963

Equivalent citations: AIR 1965 Kant 28, AIR 1965 Mys 28, (1964)
1 MysLJ
Author: M Sadasivayya
Bench: M Sadasivayya, T Tukol

JUDGMENT M. Sadasivayya, J.

(1) These proceedings pertain to the findings of a Tribunal which

had been constituted under Section 11(2) of the Indian Bar
Councils Act, 1926, (hereinafter referred to as the Act); the
findings of the Tribunal have been forwarded to this High Court
under Section 12(2) of the Act. By reason of the first proviso to
sub-clause (ii) of clause (3) of the Advocate's (Removal of
Difficulties) Order, 1963, this matter will have to be dealt with
and disposed of by this High Court, under Section 12 of the Act.

(2)The undisputed facts of the case are as follows : The

complainant Janab Mana Mohamed Ismail Saheb had engaged
the services of the respondent-Advocate Shri V. Balarathnam to
apply to the High Court of Mysore for directing the Income-tax
Appellate Tribunal to make a reference on a question of law
arising out of an Income-tax case which before the Income-tax
Appellate Tribunal, Hyderabad. The respondent-Advocate,
accordingly made an application for that purpose, under Section
66(2) of the Income-tax Act, to the High Court of Mysore. The
Office of the High Court required that two spare copies of the
order of the Appellate Tribunal as also a certificate to the effect
that the assessee had not withdrawn the application for reference
under Section 66(1) of the Income-tax Act, be produced. The
allegation of the complainant was that the respondent-advocate
did not inform the complainant about the progress of the case nor
called upon the complainant to furnish any copies of any of the
proceedings. On 21-7-1958, the petition which had been filed
before the High Court under Section 66(2) of the Income-tax Act
and which had been numbered as C.P. 175 of 58, was dismissed
on account of the failure to produce the copies that had been
called for. The complainant alleges that this dismissal was due to
the negligence on the part of the respondent-advocate.

Thereafter, the respondent advocate filed a petition for

restoration; that was in C.P. 54 of 59. But, the High Court
dismissed that petition. It was pointed out that time had been
granted repeatedly from December 1957 till April 1958, as had
been requested for from time to time by the respondent-advocate,
for furnishing the requisite papers and that in spite of time having
been so granted, there had been no compliance by the respondent-
advocate, in the matter of producing the necessary documents.
The complainant alleging that, he had suffered heavy loss on
account of the negligence on part of the respondent-advocate,
submitted a petition to the Hon'ble the Chief Justice on or about
1-3-1960 complaining against conduct of the respondent-advocate.
It was thereafter that the Chief Justice constituted a Tribunal
under Section 11 of the Act.

(3) It is not disputed before us that the proceedings before the

Tribunal were in accordance with the provisions of the Act and
the relevant rules framed thereunder. While the enquiry was
pending before the Tribunal, a memo was filed on 4-11-1901,
before the Tribunal, by the complainant and the respondent-
advocate that the parties have arrived at a compromise by
suitable apology being tendered to the complainant by the
advocate; it was submitted that the proceedings against the
respondent-advocate be dropped.
The Tribunal, as can be seen from the report forwarded by it to
the High Court, came to the conclusion that there was,
undoubtedly, serious negligence on the part of the respondent-
advocate. But, having regard to the fact that the respondent-
advocate, in the affidavit which he had filed in support of the
petition for restoration (C.P. 54 of 59), had made a clean breast of
lapse on his part, the Tribunal stated that it was of the opinion
that no action is called for and recommended that the proceedings
be dropped.

(4)The relevant portions of the findings of the Tribunal are as

follows :

"There is no doubt that there was gross negligence on the part of

Sri Balarathnam. After the petition before the High Court, C.P.
175/58, was dismissed by a Bench of this High Court on the
ground that the petitioner has failed to take the requisite steps to
enable the Court to proceed with the petition. Shri. Balarathnam
made an application that the dismissal order be set aside and the
petition restored for being heard and disposed of. That petition
for restoration numbered as C.P. 54/59 came up before a Bench of
this Hon'ble Court and was dismissed. Therein, their Lordships
pointed out that time was granted repeatedly from December
1957 to April 1958 as requested for by the petitioner's Counsel to
furnish the requisite papers nor was the requirement compiled
with when the case came up for orders on 21-7-58"

* * * * * * Later on, the Tribunal has stated as follows :

"There is undoubtedly serious negligence on the part of Sri

Balarathnam and failure to keep the complainant informed of the real
progress of the case and, what we are inclined to believe and what is
worse, that the complainant was put off whenever he enquired about
the progress of the case by telling him that the hearing date had not
yet been announced. Whatever be the merits of the application for
reference and the merits of the question that was sought to be referred,
it is not disputed that it related to a large sum viz., Rs. 8,685/- for the
year of assessment 1954-55.
It has to be noted however that there is no allegation against Sri
Balarathnam of any action involving moral turpitude. One other
relieving feature is that Sri Balarathnam has himself sworn to the
affidavit in support of his petition, C.P. 54/59 where he has made a
clean breast of the affair and prayed that his client may not be
penalised for his (Balarathnam's) very unfortunate and regrettable
remissness. It is doubtful also whether negligence on the part of
Counsel may amount to professional misconduct, though undoubtedly
an action may lie for damages of negligence on the part of
professional man to perform his duties."

(5) From the positions of the findings of the Tribunal as extracted

above, it is quite clear that the Tribunal came to the conclusion that
there was 'gross' and 'serious' negligence on the part of the
respondent-advocate. The correctness of this finding, has not been
challenged before by Shri Siddappa, the learned Counsel appearing
for Shri Balarathnam (who also is present in Court before us).

(6) The learned Advocate-General has submitted that the Tribunal

was not correct in expressing a doubt whether the negligence on the
part of the respondent-advocate, amounted to professional
misconduct. It was urged by the learned Advocate General that the
'gross' and 'serious' negligence on the part of the respondent-advocate,
as found by the Tribunal, is such as would amount to professional
misconduct. In this connection, he has relied on the decision of the
Supreme Court, reported in the matter of Mr. P. an advocate, AIR
1963 SC 1313. At para 7 in page 1315, the Supreme Court has stated
as follows:

"It is true that mere negligence or error of judgment on the part of the
Advocate would not amount to professional misconduct. Error of
judgment cannot be completely eliminated in all human affairs and a
mere negligence may not necessarily show that the Advocate who
was guilty of it can be charged with misconduct, Vide In re A Vakil,
ILR 49 Mad 523 : (AIR 1926 Mad 568 SB) and In the matter of an
Advocate of Agra, ILR (1940) All 386 : (AIR 1940 All 289 SB). But
different considerations arise where the negligence of the Advocate is
gross. It may be that before condemning an advocate for misconduct,
Courts are inclined to examine the question as to whether such gross
negligence involves moral turpitude or delinquency. In dealing with
this aspect of the matter, however, it is of utmost importance to
remember that the expression "moral turpitude or delinquency" is not
to receive a narrow construction. Wherever conduct proved against an
Advocate is contrary to honesty, or opposed to good morals, or is
unethical, it may be safely held that it involved moral turpitude. A
wilful and callous disregard for the interests of the client may, in a
proper case, be characterised as conduct unbefitting an Advocate.

In dealing with matters of professional propriety, we cannot ignore

the fact that the profession of law is an honourable profession and it
occupies a place of pride in the liberal professions of the country. Any
conduct which makes a person unworthy to belong to the noble
fraternity of lawyers or makes an advocate unfit to be entrusted with
the responsible task of looking after the interests of the litigant, must
be regarded as conduct involving moral turpitude."

(7) Reference has also been made by the learned Advocate-General to

a Full Bench decision of the Allahabad High Court, reported in Ali
Mohamad Kashmiri v. An Advocate, where the High Court has
referred to the Privy Council's view also to what has been stated in
Corpus Juris Secundum. This is what has been stated at page 665 :

"The Privy Council approved of the definition in G.F. Grahame v.

Attorney-General of Fiji, AIR 1936 PC 224. `Misconduct' is
sufficiently comprehensive to include misfeasance as well as
malfeasance, and as applied to professional people it includes
unprofessional acts even though they are not inherently wrongful; see
58 Corpus Juris Secundum. `Misconduct' 818. In Corpus Juris
Secundum, "Attorney and Client ", 742, it is said that professional
misconduct may consist in fact in any conduct which tends to bring
reproach on the legal profession or to alienate the favourable opinion
which the public should entertain concerning it."

Having regard to what has been stated by the Supreme Court in the
case above referred to, we have no doubt that the `gross' and `serious'
negligence on the part of the respondent-advocate, amounts to
professional misconduct.

(8) Shri B.T. Parthasarathy (a Member of the Bar Council) submitted

on behalf of the Bar Council, that the opinion of the Tribunal that the
proceedings against the respondent-advocate may be dropped, may be
treated as part of the findings of the Tribunal. We are unable to agree
with this submission made by Shri Parthasarathy. Properly, speaking,
the finding of the Tribunal is confined to the determination of the
question as to whether the Advocate concerned, is or is not guilty of
professional or other misconduct. The subsequent opinion of the
Tribunal that the proceedings against the respondent-advocate may be
dropped or that no further action is called for, is merely of a
recommendatory nature and does not really form any part of the
findings of the Tribunal, we find ourselves unable to accept its
recommendation for the dropping of the further proceedings. It would
not be in the interests of the legal profession or in the larger interests
of the public, to drop the proceedings, in such a manner.

(9) From the facts as found by the Tribunal, there cannot be any doubt
that there has been a callous disregard on the part of the Respondent-
Advocate, of the interests of his client the complainant. As pointed
out by the Supreme Court in the case above referred to, while dealing
with the question of an Advocate's misconduct, the expression 'moral
turpitude or delinquency' is not to be construed in an unduly narrow
and restricted sense.

(10) We are satisfied that Shri Balarathnam has been guilty of

professional misconduct. As indicated above, we are not prepared to
agree with the recommendation of the Tribunal that further
proceedings against him should be dropped. The question which
remains to be considered is as to what would be the appropriate order
that should be made against him for the said professional misconduct.
Unlike Mr. P. the Advocate in the Supreme Court case, Shri
Balarathnam, even at the earliest stage, made a clean breast of the
whole affair and frankly admitted the lapse on his part. Taking this
circumstance into consideration, we are satisfied that the interests of
Justice will be met by a reprimand being administered to the
respondent-advocate, under S. 10(1) of the Act. Accordingly, we
hereby administer a reprimand to Shri. V. Balarathnam who is present
in Court, before us.

(11) No order as to costs.

T.K. Tukol, J.

(12) I agree.

(13) Order accordingly.

4.2 Misappropriation: In the case of N.G Dastane v. Shrikant S.

Shivde, the Supreme court held that seeking repeated adjournments
for postponing examination of witnesses present in the court amounts
to misconduct and an advocate may be punished for that matter.
In a situation where an advocate collects money from their clients for
court fee and misused it, this is also misappropriation and it amounts
to professional misconduct.

N.G. Dastane vs Shrikant S. Shivde And Anr on 3 May, 2001

Author: Thomas
Bench: K.T. Thomas, R.P. Sethi, S.N. Phukan
CASE NO.:
Appeal (civil) 3543 of 2001

PETITIONER:
N.G. DASTANE

Vs.

RESPONDENT:
SHRIKANT S. SHIVDE AND ANR.
DATE OF JUDGMENT: 05/05/2001

BENCH:
K.T. Thomas, R.P. Sethi & S.N. Phukan

JUDGMENT:

THOMAS, J.

Leave granted.

We are much grieved, if not peeved, in noticing how two advocates

succeeded in tormenting a witness by seeking numerous adjournments
for cross-examining him in the Court of a judicial magistrate. On all
those days the witness had to be present perforce and at considerable
cost to him. It became a matter of deep concern to us when we noticed
that the judicial magistrate had, on all such occasions, obliged the
advocates by granting such adjournments on the mere asking to the
incalculable inconvenience and sufferings of the witness. When he
was convinced that those two advocates were adopting the tactics of
subterfuge by putting forth untrue excuses every time for postponing
cross-examination he demurred. But the magistrate did not help him.
Ultimately when pressed against the wall he moved the State Bar
Council for taking disciplinary proceedings against the advocates
concerned. But the State Bar Council simply shut its doors informing
him that he did not have even a prima facie case against the
delinquent advocates. He met the same fate when he moved the Bar
Council of India with a revision petition, as the revision petition was
axed down at the threshold itself. The exasperated witness, exhausted
by all the drubbings, has now come before this Court with this appeal
by special leave.

Appellant, the aforesaid aggrieved witness, describes himself to be an

agriculturist scientist. He claims to have worked as an Advisor in the
UNO until he retired therefrom. He filed a complaint before the
Judicial Magistrate of First Class, Pune (Maharashtra) against some
accused for the offence of theft of electricity. The accused in the said
complaint case engaged Advocate Shri Shivde (the first respondent)
and his colleague Shri Kulkarni (the second respondent) who were
practising in the courts at Pune. The two respondent-advocates filed a
joint Vakalatnama before the trial court and the trial began in 1993.
Appellant was examined in-chief. Thus far there was no problem.

The agony of the appellant started when the Magistrate posted the
case for cross-examination of the appellant on 30.7.1993. As per the
version of the appellant, he had to come down from New York for
being cross-examined on that day, but the second respondent advocate
sought for an adjournment on the ground that it was not possible to
conduct the cross-examination unless all the other witnesses for the
prosecution were also present in court. We have no doubt that such a
demand was not made with good faith. It was aimed at causing
unnecessary harassment to witnesses. No other purpose could be
achieved by such demand. Although the court was conscious that
insistence of presence of the other witnesses has no legal sanction the
Judicial Magistrate conceded to the request and posted the case to
23.8.1993.

On that day, appellant and all his witnesses were present in court. But
both the respondents sought for an adjournment, the first respondent
on the premise that he was busy outside the court, and the second
respondent on the premise that the father of the first respondents
friend expired. The Judicial Magistrate yielded to that request,
apparently in a very casual manner and adjourned the case to
13.9.1993.

On that day also the respondents sought for an adjournment but on a

flippant reason. Appellants counsel raised objections against the
prayer for adjournment. Nevertheless the Judicial Magistrate again
adjourned the case and posted it to 16.10.1993. We may point out that
the said date was chosen by the court as the respondents represented
to the court that the said date was quite convenient to them.
Appellant, thoroughly disgusted, had two options before him. One
was to get dropped out from the case and the other one was to
continue to suffer. He had chosen the latter and presented himself
along with all the witnesses on 16.10.1993. But alas, the respondents
again asked for adjournment on that day also. This time the
adjournment was sought on the ground that one of the respondent
advocates was out of station. It seems that the Judicial Magistrate
yielded to the request this time also and posted the case to 20.11.1993
peremptorily. It would have been a sad plight to see how the appellant
and his witnesses were walking out of the court complex without the
case registering even a wee bit of progress in spite of his attending the
Court on so many days for the purpose of being cross-examined. His
opposite party would have laughed in his mind as to how his
advocates succeeded in tormenting the complainant by abusing the
process of court through securing adjournments after adjournments.
The complainant would have wept in his mind for choosing a judicial
forum for redressal of his grievance.

On 20.11.1993, appellant and all his witnesses were again present,

possibly with a certitude that they would be examined at least now
because of the peremptory order passed by the Magistrate on the
previous occasion. Unfortunately, the peremptoriness of the order did
not create even a ripple on the respondents advocates and they
ventured to seek for an adjournment again on the ground that one of
the respondents advocates was indisposed. There was not even a
suggestion as to what was the inconvenience for the co-advocate.
Even so, the Magistrate yielded to that request also and the case was
again adjourned to 4.12.1993.

The flash point in the cauldron of the agony and grievance of the
appellant reached on 4.12.1993. He presented himself before the court
for being cross- examined, despite all the frets and vexations suffered
by him till that day hoping that at least on this occasion respondents
would not concoct any alibi for dodging the cross-examination. But
the second respondent who was present in the court sought for an
adjournment again with a written application, on the following
premise:
Advocate Shivde (first respondent) is unable to speak on account of
the throat infection and continuous cough. The doctor has advised him
to take two weeks rest. Hence he is unable to conduct the matter
before this Honble court today. It is therefore prayed that the hearing
may kindly be adjourned for three weeks in the interest of justice.

The Judicial Magistrate without any qualms or sensitivity succumbed

to the said tactics also and granted the adjournment prayed for. The
magistrate did not care even to ask the second respondent why he
could not conduct the cross-examination, if his colleague first
respondent is so unwell. But the magistrate felt no difficulty to
immediately allow the request for again adjourning the case. Of
course the magistrate ordered that a medical certificate should be
produced by the first respondent and cost of Rs.75/- should be paid to
the appellant. A poor solace for the agony inflicted on him.

According to the appellant, after the case was adjourned on

4.12.1993, he went out of the court room and while he was walking
through the corridors of the court complex he happened to come
across the first respondent forcefully and fluently arguing a matter
before another court situated in the same building. It was that sight
which caused him to venture to lodge the complaint against both the
respondents before the Maharashtra State Bar Council on 27.12.1993.
He had narrated the details of his complaint in the petition presented
before the State Bar Council and prayed for taking necessary actions
against the two advocates.

Both the respondents filed a joint reply to the above complaint in

which they stated, inter alia, that respondent No.1 was suffering from
severe throat infection and temperature and was under medical
treatment of Dr. Manavi and that respondent No.1 sought
adjournments in all the cases in which prolonged cross-examination
was required and he was not in a position to speak continuously
because of severe cough problem. They did not say anything about
the large number of occasions they sought for adjourning the cross-
examination of the complainant.
The State Bar Council obtained a report from its Advocate Member
Sri B.E. Avhad. That report says that he interrogated the parties and
understood that the complaint is without any substance. It was on the
strength of the said report that the State Bar Council has dropped
further proceedings against the respondents. The Revision Petition
was disposed of by the impugned order holding that the Bar Council
of Maharashtra was perfectly justified in passing the impugned
resolution dated 12.11.1994 and we see no reason to interfere with the
same; no prima facie case is made out against the respondents and
there is no reason to believe that the advocate had committed
professional or other misconduct.

When we heard the arguments of Shri PH Parekh, learned counsel for

the appellant and Sri Vijay S.Kotewal, learned Senior counsel for the
respondents we felt, apart from the question of professional
misconduct of the respondents, that the Judicial Magistrate, who
yielded to all the procrastinative tactics, should be made answerable
to the High Court so that action could be taken against the Magistrate
on the administrative side for such serious laches. We, therefore,
called upon the said Magistrate to show cause why we shall not make
adverse remarks against the magistrate in our judgment. The said
Judicial Magistrate has now explained that she had only started
working as a regular magistrate just after completing the training on
6.7.1993. If so, the Judicial Magistrate would have been a novice in
the judicial service. On that ground alone, we persuade ourselves to
refrain from recommending any disciplinary action against the
Magistrate. Be that as it may, we now proceed to consider whether the
acts attributed to the respondents amounted to professional
misconduct.

Chapter V of the Advocates Act 1961 (for short the Act) contains
provisions for dealing with the conduct of Advocates. The word
misconduct is not defined in the Act. Section 35 of the Act indicates
that the misconduct referred to therein is of a much wider import. This
can be noticed from the wordings employed in sub-section (I) of that
Section. It is extracted herein:
Where on receipt of a complaint or otherwise a State Bar Council has
reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to
its disciplinary committee.

The collocation of the words guilty of professional or other

misconduct has been used for the purpose of conferring power on the
Disciplinary Committee of the State Bar Council. It is for equipping
the Bar Council with the binocular as well as whip to be on the qui
vive for tracing out delinquent advocates who transgress the norms or
standards expected of them in the discharge of their professional
duties. The central function of the legal profession is to help
promotion of administration of justice. Any misdemeanor or misdeed
or misbehaviour can become an act of delinquency, if it infringes such
norms or standards and it can be regarded as misconduct.

In Blacks Law Dictionary misconduct is defined as a transgression of

some established and definite rule of action, a forbidden act, a
dereliction from duty, unlawful behaviour, willful in character,
improper or wrong behaviour; its synonyms are misdemeanor,
misdeed, misbehaviour, delinquency, impropriety, mismanagement,
offense, but not negligence or carelessness.

The expression professional misconduct was attempted to be defined

by Darling J. in A Solicitor ex p the Law Society, in re [1912 (1) KB
302) in the following terms:

If it is shown that an advocate in the pursuit of his profession has

done something with regard to it which would be reasonably regarded
as disgraceful or dishonourable by his professional brethren of good
repute and competency, then it is open to say that he is guilty of
professional misconduct.

In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC 264] this
Court has quoted the above definition rendered by Darling J., which
was subsequently approved by the Privy Council in George Frier
Grahame vs. Attorney General (AIR 1936 PC 224) and then observed
thus:
Misconduct envisaged in Section 35 of the Advocates Act is not
defined. The section uses the expression misconduct, professional or
otherwise. The word misconduct is a relative term. It has to be
considered with reference to the subject matter and the context
wherein such term occurs. It literally means wrong conduct or
improper conduct.

Advocate abusing the process of court is guilty of misconduct. When

witnesses are present in Court for examination the advocate
concerned has a duty to see that their examination is conducted. We
remind that witnesses who come to the Court, on being called by the
Court, do so as they have no other option, and such witnesses are also
responsible citizens who have other work to attend for eking out
livelihood. They cannot be treated as less respectables to be told to
come again and again just to suit the convenience of the advocate
concerned. If the advocate has any unavoidable inconvenience it is his
duty to make other arrangements for examining the witnesses who is
present in Court. Seeking adjournments for postponing the
examination of witnesses who are present in Court even without
making other arrangements for examining such witnesses is a
dereliction of advocates duty to the Court as that would cause much
harassment and hardship to the witnesses. Such dereliction if repeated
would amount to misconduct of the advocate concerned. Legal
profession must be purified from such abuses of the Court procedures.
Tactics of filibuster, if adopted by an advocate, is also professional
misconduct.

In State of UP vs. Shambhu Nath singh [JT 2001 (4) SC 319] this

Court has deprecated the practice of Courts adjourning cases without
examination of witnesses when such witnesses are in attendance. We
reminded the Courts thus:

We make it abundantly clear that if a witness is present in court he

must be examined on that day. The court must know that most of the
witnesses could attend the court only at heavy cost to them, after
keeping aside their own avocation. Certainly they incur suffering and
loss of income. The meagre amount of Bhatta (allowance) which a
witness may be paid by the court is generally a poor solace for the
financial loss incurred by him. It is a sad plight in the trial courts that
witnesses who are called through summons or other processes stand at
the doorstep from morning till evening only to be told at the end of
the day that the case is adjourned to another day. This primitive
practice must be reformed by presiding officers of the trial courts and
it can be reformed by every one provided the presiding officer
concerned has a commitment to duty. No sadistic pleasure in seeing
how other persons summoned by him as witnesses are stranded on
account of the dimension of his judicial powers can be a persuading
factor for granting such adjournments lavishly, that too in a casual
manner.

When the Bar Council in its wider scope of supervision over the
conduct of advocates in their professional duties comes across any
instance of such misconduct it is the duty of the Bar Council
concerned to refer the matter to its Disciplinary Committee. The
expression reason to believe is employed in Section 35 of the Act
only for the limited purpose of using it as a filter for excluding
frivolous complaints against advocates. If the complaint is genuine
and if the complaint is not lodged with the sole purpose of harassing
an advocate or if it is not actuated by mala fides, the Bar Council has
a statutory duty to forward the complaint to the Disciplinary
Committee.

In Bar Council of Maharashtra vs. MV Dabholkar [1976 (2) SCR 48]

a four Judge Bench of this Court had held that the requirement of
reason to believe cannot be converted into a formalised procedural
road block, it being essentially a barrier against frivolous enquiries.

In our opinion, the State Bar Council has abdicated its duties when it
was found that there was no prima facie case for the Disciplinary
Committee to take up. The Bar Council of India also went woefully
wrong in holding that there was no case for revision at all. In our
considered view the appellant complainant has made out a very strong
prima facie case for the Disciplinary Committee of the State Bar
Council to proceed with. We, therefore, set aside the order of the State
Bar Council as well as that of the Bar Council of India and we hold
that the complaint of the appellant would stand referred to the
Disciplinary Committee of the State Bar Council.

Section 36(2) of the Advocates Act reads thus: Notwithstanding

anything contained in this Chapter, the disciplinary committee of the
Bar Council of India may, either of its own motion or on a report by
any State Bar Council or an application made to it by any person
interested, withdraw for inquiry before itself any proceedings for
disciplinary action against any advocate pending before the
disciplinary committee of any State Bar Council and dispose of the
same.

As the complaint is now, by virtue of this judgment, pending before

the Disciplinary Committee of the State Bar Council we consider the
question whether it is appropriate that the Bar council of India takes it
up for the purpose of referring it to its Disciplinary Committee. As the
misconduct alleged is of the year 1993-94 the ends of justice demand
that the Disciplinary Committee of the Bar Council of India should
now deal with the complaint. For that purpose we order that the
complaint of the appellant would stand referred to the Bar Council of
India under Section 36 of the Advocates Act. Now we direct the said
Disciplinary Committee to adopt such steps as are necessary for the
disposal of the complaint in accordance with law and in the light of
the observations made above.

The appeal is disposed of accordingly.

4.3 Improper behaviour before Magistrate: An advocate is required

to respect the court and maintain its dignity. Making any false
allegation against the judicial officers also amounts to gross
misconduct.

4.4 Furnishing False Information: in Emperor v. K.C.B.A Pleader

the constitutional court held the advocate guilty of misconduct for
furnishing false information to Marwari.
Emperor vs K.C.B., A Pleader on 4 December, 1934
Equivalent citations: AIR 1935 Cal 547, 157 Ind Cas 998

ORDER

1. This is a Reference under Section 14(b), Legal Practitioners Act,

made to this Court, by the learned District Judge of Burdwan,
recommending the suspension of a Pleader practising at Katwa, for
one year, on the ground that the pleader was guilty of grossly
improper conduct in the exercise of his professional duties. It appears
that the pleader was charged by the Sub-divisional Magistrate, Katwa,
for having falsely told one Bazrang Lal Marwari that the Sub-
divisional Officer, Katwa, had ordered that "the goods be sent to the
person they belonged to," in respect of twenty-three tins of ghee
which the Katwa Municipality had impounded as being adulterated,
and which had been kept in the custody of the said Bazrang Lal
Marwari by the Municipality, and Bazrang Lal Marwari had sent the
ghee back to the person to whom it belonged, by relying on the said
false statement of the pleader. An inquiry into the charge was made
by a Magistrate in which inquiry evidence was taken. On the
materials placed before the inquiring Magistrate, he came to the
conclusion that the allegation against the pleader had been proved.
The report of the Magistrate was in due course placed before the
District Magistrate of Burdwan as required by law; and the District
Magistrate held that the conduct of the pleader was most
reprehensible, and was of opinion that action should be taken against
him under the Legal Practitioners Act. The record of the case was
thereupon sent to the District and Sessions Judge of Burdwan for
taking necessary action. The District Judge accepted the conclusions
of the inquiring Magistrate and the District Magistrate, and has
reported the case of the pleader to this Court for such action as this
Court might think fit and proper, with the recommendation for
suspension of the pleader, as mentioned above.

2. It was argued on behalf of the Pleader that the evidence in the case
was wholly insufficient to substantiate the charge against the Pleader.
The relevant portions of the evidence on the record was placed for our
consideration by the Advocate representing the Pleader. On careful
consideration of the materials on the record, we are unable to hold
that the conclusion arrived at by the Magistrates and the learned
Judge, that the Pleader had given his client the false information that
the Sub-divisional Magistrate had ordered the tins of ghee to be sent
back to the person they belonged to; that the Sub-divisional
Magistrate had permitted the disposal of the tins of ghee, which were
the subject-matter of a charge under Section 16(1)(c), Bengal Food
Adulteration Act, is wrong. In our judgment, the pleader concerned
was guilty of fraudulent or grossly improper conduct in the discharge
of his professional duty, as contemplated by Section 13(b), Legal
Practitioners Act. In view of the facts and circumstances appearing
from the materials on the record, we have come to the decision that an
order of suspension of the pleader for the period of three months will
sufficiently meet the justice of the case before us; and we direct
accordingly.

4.5 Appealing for both sides: An advocate is duty-bound to protect

the best interest of their clients. He must not represent conflicting
views.

4.6 Giving Improper Advice: Advocacy is a noble profession, so an

advocate is under the impression of a knowledgeable person, he is
must benefit the client by his learning, talents and judgment. He must
provide is the proper and best advice to his clients.

4.7 Two Test Theory: to determine whether any particular act is

professional misconduct or not, we can proceed with ‘two test
theory’.

In Re an advocate, it was held that.

1. the misconduct is such that he must be regarded as
unworthy to remain a member of the Honorable
profession.
 2. The misconduct is such that the advocate must be regarded
as unfit to be entrusted with the duties that an advocate is
called upon to perform.
3. Roles, Powers and Objective of the Disciplinary
Committee of the Bar Council of India

Section 42 of the Advocates Act 1961, provides the roles of the

Disciplinary Committee of a Bar Council. The provisions of this
Section are applicable to the State Bar Council as well as the Bar
Council of India.

5.1 Powers of the disciplinary committees:

Section 42 of Advocates Act, 1961, provides that the disciplinary

committee of a Bar Council shall have the same powers and roles as
are vested in a civil court under the Code of Civil Procedure, 1908,
with respect to summoning and enforcing the attendance of any
person and examining him on oath, requiring discovery and
production of any documents; receiving evidence on affidavits;
requisitioning any public record or copies thereof; issuing
commissions for the examination of witnesses or documents and any
other matter which may be prescribed.

Any advocate who is suspended from practice by the disciplinary

committee means that the advocate is debarred from practising in any
court or before any authority or persons in India. The disciplinary
committee of a State Bar Council may of its own motion or otherwise
review any order passed by its own self, but no such order shall be
effected unless it has been approved by the Bar Council of India.

5.2 Power to enquire and to withdraw:

If on receipt of a complaint or on its own motion, the Bar Council of
India has reason to believe that any advocate on the roll whose name
is not entered on any state roll, had been guilty of professional or
other misconduct, it shall refer the case of such advocate for disposal
to its disciplinary committees, The committee may also of its own
motion, conduct an enquiry before itself, any proceedings for
disciplinary action against any advocate pending before the
disciplinary committee of any state Bar Council and dispose of the
same.

5.3 Power to hear appeals and order stay:

Any person aggrieved by the order of the disciplinary committee of a
State Bar Council under section 35 of Advocates Act, 1961 may
within sixty days of the date of the communication of the order to
him, may appeal before the Bar Council of India. Every such appeal is
to be heard by the disciplinary committee of the Bar Council of India
which may pass any such order which it deems fit.
In the case of Adi Phirozshah Gandhi v. H.M. Seervai, The
disciplinary committee of the Bar Council of India in its own order
allowed an appeal filed by the advocate-general under section 37 of
the Advocates Act, 1961. The disciplinary committee of the Bar
Council of India suspended the advocate for a year over-ruling its
own decision. The same was upheld by the supreme court of India.
Adi Pherozshah Gandhi vs H. M. Seervai, Advocate-General ... on
21 August, 1970
Equivalent citations: 1971 AIR 385, 1971 SCR (2) 863
Author: M Hidayatullah
Bench: Hidayatullah, M. (Cj), Shelat, J.M., Mitter, G.K.,
Vaidyialingam, C.A., Ray, A.N.
PETITIONER:
ADI PHEROZSHAH GANDHI

Vs.
RESPONDENT:
H. M. SEERVAI, ADVOCATE-GENERAL OF
MAHARASHTRA, BOMBAY

DATE OF JUDGMENT:
21/08/1970

BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHELAT, J.M.
MITTER, G.K.
VAIDYIALINGAM, C.A.
RAY, A.N.

CITATION:
1971 AIR 385 1971 SCR (2) 863
1970 SCC (2) 484
CITATOR INFO :
RF 1975 SC2092 (21,22,52,57)
RF 1981 SC 116 (7)
E 1982 SC 149 (606,963)
F 1983 SC 990 (11)

ACT:
Advocate Act (25 of 1961) s. 37--'person aggrieved',meaning
of--Advocate-General of State taking part in proceedings
before Disciplinary Committee of Bar Council--If person
aggrieved' with a right of appeal.

HEADNOTE:
The appellantwas an advocate from Maharashtra. He was
convicted by a Summary Court in London on a charge of
pilfering from a Departmental Store and was sentenced to pay
a fine. The State Bar Council called upon him sou motu to
show cause why he should not be held guilty of misconduct.
he submitted his explanation and the Disciplinary Committee
of the Bar Council was satisfied that there was no reason
for holding him guilty of professional misconduct. The
Advocate-General of the State who was sent a notice of the
proceedings as required by s. 35(2) of the Advocates Act,
1961, and bad appeared before the Disciplinary Committee,
filed an appeal to the Bar Council of India under s. 37 of
the Act, under which, any person aggrieved by an order of
the Disciplinary Committee of the State Bar Council made
under s. 35 of the Act, may prefer an appeal to the Bar
Council of India. The appellant objected that the Advocate-
General had no locus standi to file the appeal. The
objection was overruled by the Disciplinary Committee of the
Bar Council of India and the appellant was found guilty of
professional misconduct.
in appeal to this Court, on the question of the competency
of the Advocate-General to file the appeal under s. 37.

HELD : (Per Hidayatullah. C.J., Shelat and Mitter, JJ.) The

was not a person aggrieved, within the meaning of 37 and
therefore, the appeal filed by him was incompetent and
hence, finding of the Disciplinary Committee of the Bar
Council of India should be get aside. [887 H; 904 E]
(Per Hidayatullah C.J.) (1) The expression person
aggrieved' must be construed by reference to the context of
the enactment in which it and all the circumstances. Under
the Act, disciplinary proceedings before a State Bar Council
commence on a complaint to it or suo motu and are referred
to its Disciplinary Committee. The Disciplinary Committee
can reject the matter summarily; but if it proceeds to hear
it further, notice thereof is sent to the concerned advocate
and to the advocate-General of the State. The Advocate-
General may appear personally or by counsel. If the
Disciplinary Committee after giving the Advocate and the
Advocate-General an opportunity to be heard holds hat the
Advocate is not guilty of any misconduct it makes an order
it her dismissing the complaint, or where the proceeding was
started by in Bar Council makes an order that the matter may
be filed.. If it finds the advocate guilty- it may either
reprimand the advocate or suspend
864
the advocate from practice for a specified period or remove
his name from the roll of Advocates. From the decision of
the Disciplinary Committee of the State Bar Council an
appeal lies to the Bar Council of India at the instance of a
person aggrieved'. The appeal is heard by the Disciplinary
Committee of the Bar Council of India and from its decision
an appeal lies to this Court. [884 E-H; 885 A-B]
(a) In these proceedings before the disciplinary committee
the Advocate-General is not in the nature of a party having
independent rights which lie can claim nor is he injured by
the decision. The decision does not deny him anything nor
does it ask him to do anything. He is also not intended to
be bound by the decision. He does not represent the Bar nor
has he a right to speak on behalf the body of the
advocates. Such a privilege is neither expressly conferred
on him nor can it be implied from the provisions of the Act.
[885 C-D; 886 A-B]
(b) In the State Bar Councils (except in Delhi), the
Advocate-General of the State is an ex-officio member, but
his functions are not different from those of other members.
He has a right of pre-audience, but the Advocates Act does
not confer any other right on him.When the Committee
considers in limini to decide whether the matter should be
proceeded with at all, the Advocate General's presence is
not considered necessary. Therefore, the Advocate-General
is not a prosecutor on behalf of the Bar Council. He is
noticed and brought before the Committee because he is the
Chief Counsel of the State and therefore his assistance at
the hearing is useful. He is generally a lawyer of some
standing having made a mark in the profession and his
contribution to the deliberations of the Disciplinary
Committee is welcome, because, thus the Disciplinary
Committee is helped to reach a proper conclusion. The fact
that he can appear through counsel shows that the intention
is merely to have his opinion as an amicable curiae who is
neither siding with the complainant nor with the Advocate
and who will thus have an unbiased and impartial approach to
the case. He must after he has done his duty leave the
matter to the complainant and the advocate or the Bar
Council to take the matter further if they choose. [883 C,
E-F; 885 E-H; 886 A]
(c) If he is not a person summoned to be bound by the order
but a person who is heard in a dispute between others merely
to be of assistance in reaching the right conclusion he can
hardly have a grievance. Any person who feels disappointed
with the result of a case is not a person aggrieved'. He
must be disappointed of a benefit which he would have
received if the order had gone the other way. The order
must cause him a legal grievance by wrongfully depriving him
of something or must have a tendency to injure him. That
the order is wrong or that it acquits some one who he thinks
ought to be convicted does not by itself give rise to a
legal grievance. [876 A-C]
Therefore, it cannot be said that by reason of the
provisions of the Advocates Act, the Advocate-General of the
State enjoys such a position that be must necessarily be
treated as a person aggrieved' entitling him to file an
appeal. [882 H; 886 G]
-In re. Sidebotham Ex. Sidebotham, (1880) 14 Ch. D.
458(C.A.). Inre. Lamb Exp. Board of Trade, [1894] 2
O.B.D. 805, 812, In re. Kitson,, Exp. Sugden
(Thomas) &
Sons, Ltd. [1911] 2 K.B.' 109, 112-114. Bln. re. Brown
Exp. Debtor v. official Receiver (1943) Ch. D. 177. Ellis
Exp. Ellis (1876)2 Ch. D. 779, In re. Words Exp. Dalton
(1874)40 L.T. 297(C.A.), R. v. London County
Keepers of
Peace and Justice [1890] 20 Q.B.D. 357, Jennings v. Kelly,
[1940] A.C. 206 (H.L.). In
865
re. Reviere (1884) 2 Ch. D. 48, Robinson v. Currey [1881]
7 Q.B.D. 465, 470 (C.A.); Seven Oaks Urban District Council
v. Twynham (1929) 2 K.B. 440,' 443, Eating-Corporation v.
Jones L. R. [1959] 1 Q.B.D. 384, B. M. Madani v.
Commissioner of Workmen's Compensation Bombay, C.A. 877 of
1968 decided on October 10, 1968 and Municipal Corporation
of the City of Bombay v. Chandulal Shamldas Patel, C.A. 1716
of 1967 decided on August 1, 1970, referred to.
(2) It could not be said that in the present case there
were several points of general public interest which needed
to be solved and therefore, if the decision of the
Disciplinary Committee of the State Bar Council was wrong,
the Advocate-General, in public interest, could take the
matter further. [886 G-H]
Unlike the position of an Attorney General in a Crown
Colony, the Advocate-General of a State in India does not
represent the Executive or the Legislature or the Judiciary,
or the Central Government in disciplinary proceedings before
the Disciplinary Committee. The magniloquent phrases such
as Leader of the Bar, Keeper of the, Conscience of the Bar
have no meaning neither under the Advocates Act nor under
the Bar Councils Act, 1926. They are just honorific titles
given by the courtesy but are not grounded on law, the
keepers of the conscience of the Bar being the Bar Councils.
[883 F-G; 886 C-D]
In the present case,the appellant was not precluded from
questioning the charge in the disciplinary proceedings
because of the decision of the Criminal Court in London.
His explanation was accepted by the Disciplinary Committee
of the State Bar Council. They were also satisfied that the
summary proceedings in the criminal trial in England
offended against the principles of natural justice, and that
therefore, the conviction of the appellant in England did
not show any moral turpitude in the appellant. If the
Advocate General's view on these matters were not accepted
by the Disciplinary Committee he could not have any
grievance. He could not make it his own cause or a cause on
behalf of others whom he did not represent. He had done his
duty and the matter should have rested there. [887 C-F]
Attorney-General of Gambia v. Pierre Saar N'Jie, [1961] A.C.
617 (P.C.) referred to.
(3) (a) The facts that in Advocate-General of Bombay v.
Phiroz Rustamji Barucha 37 Bom. L.R. 722 (P.C.) the
standing of the Advocate-General to apply for special leave
in a proceeding relating to professional misconduct of an
Advocate was questioned before the Privy Council, but that
the Privy Council refused special leave on a different
ground cannot import a rejection of the objection as to the
standing of the Advocate-General. [881-E]
(b) The observations in B. Nageshwara Rao v. The Hon'ble
Judges of the Madras High Court, [1955] 1 S.C.R. 1055 that
in an appeal arising out of a proceeding under the Bar
Councils Act, it was inappropriate to make the Judges
respondent, and that the appropriate parties should be the
concerned Advocate the complainant (if any), the Bar Council
and the Advocate-General of the State, do not advance the
case of the Advocate-General in this case. [882 E]
(Per Shelat and Mitter, JJ.) (1) A State Bar Council
consists of a number of members including the Advocate-
General of the State ex-officio. Under the provisions of
the Advocates Act, subject to a right of appeal to this
Court under s. 38, inquiries into charges of misconduct
against
L169CI/71-11
866
advocates are to be in the exclusive jurisdiction of the Bar
Councils. If a complaint is received against an Advocate it
is referred to the Disciplinary Committee of- the Bar,
Council or the Bar Council can take such a step suo motu.
It is however not obligatory to refer each and every com-
plaint but only when the Bar Council is satisfied that there
is a prima facie case for investigation. if it is not so
satisfied it can throw out the complaint as frivolous. And
it is only when the Disciplinary Committee does not
summarily reject the complaint that a date has to be fixed
for its hearing and notice there of must be given to the
advocate concerned and the Advocate-General of the State but
it is not incumbent on the Advocate-General to appear in
person; he can appear through another advocate and place his
view-point before the Disciplinary Committee. The Advocate
and a complainant who makes allegations against an advocate
are persons aggrieved entitled to file an appeal under s. 37
if an order is made against the advocate, or the complaint
is dismissed by the Disciplinary Committee. But the State
Bar Council cannot be such a person as the order is made by
itself and acting through its Disciplinary Committee. [889
B-C; 891 B-C]
Generally speaking a person is said to be aggrieved by an
order which is to his detriment, pecuniary or otherwise or
causes him some prejudice in some form or other. A person
who is not a party to a litigation has no right of appeal
merelybecause the judgment or order contains some adverse
remarks against him. A person who is not a party to a suit
may prefer an appeal,, with the leave, of the appellate
court when the judgment would be binding on him. But
because a person has been given notice of some proceedings
wherein he is given a right to appear and make his
submissions, he does not without more, have a right of
appeal from an order rejecting his contentions or
submissions. To place the Advocate-General in the company
of "persons aggrieved" one must be able to say that the
Disciplinary Committee committed an error which it was his
duty to attempt to set right because of some function
attributable to him as the Advocate General or some
obligation cast upon him by the Act or the general law of
the land to safeguard and maintain standards of conduct of
Advocates laid down by the Bar Council of India. [892 B-F]
(a) The Advocate-General is entitled to a hearing if the
complaint is not rejected summarily. But it is not
obligatory on him to take part in the proceedings. It is
only when he feels that a case requires a careful
investigation and proper elucidation of the facts or the
exposition of the law on the subject that he is called upon
to render assistance. He has to take a fair and impartial
attitude and render all assistance to the Bar Council to
enable it to arrive at a proper decision. His role is not
that of a prosecutor nor is he a defence counsel on behalf
of the advocate. Ms duty is to put before the Disciplinary
Committee the facts in their proper perspective and to
advance the proper inference to be drawn. Once he does so
there is an end of the matter so far as he is concerned; and
he cannot have any grievance because the decision of the Bar
Council is against his submission or not to his liking'.
[896 G-H; 897 A-C]
(b) Article 165(2) of the Constitution epitomizes the
functions and duties of the Advocate-General. It lays down
that he has to discharge the functions conferred upon him by
or under the Constitution or any other law for the time
being in force. It is not open to the Advocate-General to
intervene in any suit or legal proceeding apart from the
provisions of the Codes of Civil and Criminal Procedure,
merely because he thinks public interest is involved in the
matter. Considering the matter
867
historically, the Legislature, while passing the Bar
Councils Act, 1926, and the Advocates Act, 1961, thought
that the Advocate-General should be heard inasmuch as he
occupied the position of a general referee on points of
professional etiquette very much like the Attorney-General
in England. Once he does this duty enjoined upon him by the
statute. of making such submissions as he thinks proper at
the hearing, his functions qua the enquiry come to an end.
As a referee he has no further interest in the matter, and
if the Disciplinary Committee makes an order -against the
advocate which the Advocate-General considers harsh and
unreasonable he is not called upon to file an appeal.
Neither is he interested in prosecuting the. matter further
if he takes the view that the punishment meted out is not
commensurate with the misconduct of the advocate. [897D-E,
G-H; 900 C-F]
Robinson v. Currey, 7 Q.B.D. 465, Ex parte Sidebotham. In
re Sidebotham, 14 Ch. D. 458 465, Ex parte Official
Receiver. In re Read, Brown & Co. 19 Q.B.D. 174, 178, the
Queen v. Keepers of the Peace and Justices of the County of
London, 25 Q.B.D. 359, 361; Rex v. London Quarter Sessions,
Exparte Westminster Corporation (1951) 2 Q.B.D. 508, Seven
Oaks Urban District Council v. Twynham, (1929) 2 Q.B.D. 444,
Ealing Corporation v. Jones, (1954) 1 K.B. 384, 390,
referred to.
(2) The Advocate-General of a State in India is not a
representative of the Government. Neither the Constitution
nor the Advocates Act holds him so nor is be a person
representing public interest, unlike the Attorney-General in
a Crown Colony' except as provided in statutes. He may draw
the attention of the Bar Council to any misconduct of an
advocate and appear at the hearing. Once the hearing is
over and a finding is recorded he has done his duty and be
cannot be said to be aggrieved within the meaning of s. 37.
Every day courts of law are called upon to decide questions
of law inter parties which may be of general importance to
the public. The Advocate-General cannot prefer an appeal
merely because the question is one of considerable
importance to the public inasmuch as he is not a party to
it; and he has no locus stand to do so, even in a case where
the statute only gives him an opportunity of appearing at a
hearing and making his submission. A decision of the
Disciplinary Committee cannot necessarily be said to raise a
point of public interest merely because the Advocate General
feels that it is erroneous or that he himself would have
arrived at a different in India is not the guardian angel of
the Bar, nor is he the champion of public interest in any
matter save as specified in a statute. [902 D-G; 904 B-E]
Attorney General of Gambia v. Pierre Saar N' Jie, (1961)
A.C. 617, (P.C.), referred to.
(3)(a) The decision of the Judicial Committee in Advocate-
General, Bombay v. Phiroz Barucha, 37 B.L.R. 722 (P.C.) does
not help the Advocate-General, because it did not decide
the point as to the maintain ability of the appeal. [903 C-
D]
(b) It did not appear that any argument was advanced in
Nageswara Rao v. The Hon'ble Judges of the' Madras High
Court, [1955] S.C.R. 1055, 1064 about the proper parties to
the appeal before this Court arising from proceedings under
the Bar Councils Act; and the point as to Whether the
Advocate General was a person aggrieved was neither raised
nor argued. Therefore. the observation in the case that
868
the Advocate-General of the state is an appropriate party in
the appeal should, not be accepted. 1903 G-H]
(Per Vaidialingam and Ray, JJ. dissenting) : The appeal
filed by the Advocate-General of Maharashtra was competent
as he was a person aggrieved' under s. 37 of the Advocates
Act, 1961. [908 B-C; 920 G-H]
(Per Vaidialingam, J.) : (1) The questionwhether the
Advocate General is a person aggrieve& under s. 37 of the
Advocates Act will have to be tackled with reference to the,
scheme and provisions of the Act.' Under the Act, the State
Bar Councils and the Bar Council of India have been made
autonomous units and various functions regarding the legal
profession have been entrusted to them including taking
disciplinary action against delinquent members and
conducting inquires. Barring a ,right of appeal to this
Court under s. 38 the courts are completely out of the
picture. Under ss. 3 (2) (a), 23 (4) and 35, the Advocate-
General of the State is given a very important and
responsible position and the Act has given due recognition
to his status by virtue of his being the highest law officer
in the State, and as one who may be trusted to place a dis-
interested and dispassionate view before the Disciplinary
Committee to enable it to come to a proper decision with
respect to the advocate concerned and the legal profession.
Apart from being an ex officio member of the State Bar
Council, he has also a right of pre-audience over other
advocates. [909 D-G; 911 G-H; 912 B-D; 916 A]
Under ss. 35 and 37, (i) the State Bar Council can suo motu
or on receipt of a complaint, when it has reason to believe
that an advocate has been guilty of professional or other
misconduct, refer the case- to its Disciplinary Committee
(ii) If the Committee doesnot summarily reject the
complaint, it is bound to fix a date for its hearing and
also bound to give notice to the advocate and the Advocate
General of the State; (iii) The Committee is bound to give
an opportunity of being heard to the Advocate and the
Advocate-General and there is no distinction in the opportu-
nity so afforded to both of them; (iv) The Advocate-General
may appear in person or through counsel; (v) the Committee
can pass one or other of the orders enumerated in s. 35(a)
to (d) and the orders have to be communicated to the
Advocate-General also, and under s. 37, any person
aggrieved' is entitled to file an appeal to the Bar Council
of India. Unlike under the Bar Councils Act, the Advocate-
General is associated with the disciplinary proceedings
right from the stage of the inquiry by the Committee. The
notice to the Advocate-General cannot be a formal and empty
notice, because he should begin an opportunity of being
heard. Even though there may be no lis' and the Advocate-
General may not be a party' in the usual sense, he is also
entitled, like the advocate against whom the inquiry is
being conducted, to place before the Committee all aspects
of the matter in favour of and against the advocate. He is
allowed to appear by counsel, because, he may not be able to
appear personally and participate in all the disciplinary
proceedings. He need not be vindictive or take sides, but
by virtue of his special and dispassionate role he will be
able to place all relevant material to enable the Committee
to come to a proper and correct finding. [912 D-H; 913 A-H:
914 A-B]
(a) The fact that the Advocate General does not allege an
infringement of any legal rights of his own is of no
consequence. It may be that in a particular case the
Advocate General may feel that the finding arrived at either
in favour of the advocate or against him or the punishment
imposed on the advocate, is not justified by the evidence on
record. Under such and similar circumstances the Advocate
General will be competent, as a person aggrieved, to bring
up the matter before the Appellate Committee so that justice
may be done..[914-G; 915 A-C]
869
Sevenoaks Urban District Council,v. Twynham [1929] 2 K-B.
440 Ealing Corporation v. Jones [1959] 1 Q.B. 584, Madani v.
Commissioner of Workmen's Compensation, Bombay, C.A. 877 of
1968 decided on October 10, 1968.
Re. Sidebotham 14 Ch. D. 458, The Queen v. The Keepers of
the, Peace and Justices of the County of London, 25 Q.B.D.,
357, Re. Reed, Brown & Co. 19 Q.B. 174, Rex v. London
Quarter Sessions (1951) 2 K.B. 508 and Municipal Corporation
of the City of Bombay v. Chandulat Shamaldas Patel, C.A.
1716 of 1967 decided on August 1, 1970, referred to.
(b) The fact that the Legislature provided that the
Advocate-General should be associated with the disciplinary
proceedings from the very beginning of the inquiry brings
him under s. 37 as a person aggrieved' and hence the fact
that the Committee decided in favour of the Advocate has no
bearing on the question. [914 G-H]
(c) The fact that the Advocate-General is not given notice
before rejecting a complaint summarily does not militate
against the view that he is a person aggrieved' because,
probably, the Legislature felt that if there was a wrongful
summary rejection of a complaint, it could be set right by
the Bar Council of India under a. 48A by exercising its
signal powers. [916 FF]
(d) In this view it is unnecessary to mention the Advocate
General specifically a person aggrieved' in a. 37. [918 A]
(2) Ile analogy of the Attorney-General in a Colony
representing the Crown and being the guardian of public
interest as stated in Attorney-General of Gambia v. Pierre
Sarr N' Jie (1961) A-C. 617 cannot be brought in for
interpreting s.37 of the Advocates Act, and the observations
therein must be related to the particular legal provisions
which were considered. But even that decision- recognised
that the words person aggrieved' are very wide and should
not be subjected to any restrictive interpretation. (912 A-
B; 920 A-B, E]
(3) The decisions in Advocate-General of Bombay v.
Pitambardas Gokuldas, 62 I.A. 235 and Advocate-General of
Bombay v. Phiroz Rustomji barucha, 37 B.L.R. 722(P.C.) do
not decide the question one way or the other, [917 A-D]
(Per Ray, J.) : (1) The purpose and the provisions of the
Advocates Act determine whether the Advocate-General is a
person aggrieved within the meaning of s.37 of the Advocates
Act. Under the Act, a State Bar Council is empowered to
constitute a Disciplinary Committee. Where on receipt of a
complaint or otherwise a State Bar Council has, reason to
believe that an advocate on its roll is guilty of
professional misconduct it shall refer the case for disposal
to its Disciplinary Committee, and if the Committee does not
summarily reject it, a date of hearing shall be fixed. The
provisions relating to inquiries into professional
misconduct of an advocate, establish first that the Advocate
General entitled to a notice of the date of hearing,
secondly, that no order can be made by the Disciplinary
Committee without giving him an opportunity, and thirdly
that he may appear in person or through an advocate and that
he has a right of preaudience. He may not choose to appear
but if he does appear, his right is based on statute; and he
does not appear as a mere friend of the court. He is heard
because he is the head of the Bar in the State and the
proceedings affect the discipline and dignity of the Bar and
touch the professional
870
conduct of an advocate. Under Art. 165 of the Constitution
the Advocate General.has to discharge the functions
conferred on him by the Constitution or any other law in
force. The Advocates Act concerns an advocate and it is in
the fitness of things that the Advocate General of the State
is heard as a person representing the profession which
assists the litigant public and the courts in the
administration of justice. He is usually a person of high
standing and experience and will pot adopt any partisan
attitude in the proceedings. The purpose of the inquiry is
not to redress the grievance of an individual complainant-in
fact ss. 35 and 36 do not contemplate any notice to the
complainant-but to find out whether there is any breach of
professional standards and conduct.
[926 C-H; 827 F-H; 928 A-C]
(a) It is not the intention of the statute that he would be
merely a neutral observer before the Disciplinary Committee
and that he would have no duty to perform. He would have to
express his views, and if in a matter of sufficient gravity
a totally inadequate punishment is imposed or if the
punishment is too severe the Advocate General would be a
person aggrieved', to have it corrected. The words person
aggrieved' will be referable to the Advocate, complainant,
and the Advocate General or Attorney General as the case may
be. The Advocate-General and the Attorney General will be
persons aggrieved because they are interested in maintaining
professional rectitude. [929 C-G]
(b) Further if the proceedings were held without notice to
the Advocate General or without giving him an opportunity of
being heard he would be a person aggrieved. His
participation in the proceedings does not alter the
position. If he has a right to be heard, he may have a
grievance as to the result of the hearing. [929 A-B]
Re. Exparte Sidebotham 14 Ch. D. 458; Exparte Official
Receiver, In re. Reed Bowen, 19, Q. B. D. 174, Sevenoaks
Urban British Council v. Twynhan (192-9) 2 K. B. 104, Queen
v. Keepers of the Peace and Justices of the County of
London, 25 Q., B. D. 357 and Madani v. Commissioner
of
Workmen's Compensation, Bombay, C.A. 877 of 1968 decided on
October 10, 1968, referred to.
(2) In disciplinary proceedings there is no party in the
usual sense. The Advocate-General is not a party to a lis'
and has no personal or pecuniary or proprietary interest in
the matter. That is why the Act uses the words person
aggrieved' and not party aggrieved'. But he is heard, not
because he is a party, but because he represents the
interest of the profession and for the purpose of upholding
its purity and the preservation of correct standards and
norms. From this point of view he will be an aggrieved
person when he finds. that the interests of the Bar, which
is a matter of public interest, is not properly safeguarded
by the Disciplinary Committee. In Attorney General of
Gambia v. Pierre Saar N' Jie. (1961) A.C. 617 the Judicial
Committee construed the words person aggrieved' as not to
be subjected to a restrictive interpretation but to include
a person who has a genuine grievance because an order has
been made which prejudicially affected his interest, and
that the words would include the Attorney General of Gambia
as representing the public interest. [927 E-F; 928 C-D, G-H;
929 G-H]
(3) The decisions of the Judicial Committee in Advocate-
General of Bombay v. Phiroz Barucha, 62 I.A. 235 and of this
Court in B. Nageshwara Rao v. The Hon'ble Judges of the
Madras High Court, [1955] 1 S.C.R. 1055 indicate that the
Advocate General under the Bar Councils Act, 1926 had locus
standi to prefer an appeal. [925 D-E, G]
871

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal.No. 2259 of

1969. Appeal under s. 38 of the Advocate's Act, 1961 from the order
dated October 26, 1969 of the Disciplinary Committee of the Bar
Council of India in D.C. Appeal No. 18 of 1968. C. K. Daphtary, A.
S. R. Chari, J. B. Dadachanji, O. C. Mathur, Ravinder Narain and S.
Swarup, for the appellant., V. S. Desai and B. D. Sharma,, for
respondent No. 1. M. C. Bhandare and S. B. Wad, for Respondent No.
2. V. A. Seyid Muhammad and S. P. Nayar, for. Attorney- General for
India.

A. V. Rangam, for Advocate-General for the Tamil Nadu. M. C.

Setalvad, Rameshwar Nath, for Bar Council of India. O. P. Rana, for
Advocate-General for the State of U.P. A. G. Pudissery, for
Advocate-General for the State of Kerala.

K. Baldev Mehta, for Advocate-General for the State of Rajasthan.

A. P. S. Chauhan, A. D. Mathur and N. P. Jain, for Bar Council U.P.

Sukumar Ghose and G. S. Chatterjee, for- the Advocate General for

the State of West Bengal.

P. Parmeswara Rao, for Advocate-General for the Andhra Pradesh.

I. N. Shroff, for Advocate-General for the State of Madhya Pradesh.

J. C. Medhi, Advocate-General for the State of Assam and Naunit Lal,

for the Advocate-General for the State of Assam. HIDAYATULLAH,
C.J., and MITTER J. on behalf of SHELAT J.and himself delivered
separate judgments. VAIDIALINGAM andRAY JJ. delivered
separate dissenting opinions. Hidayatullah, C.J.I agree with the
judgment delivered by my brother Mitter but in view of the
importance of the question and the difference between my brethren I
have chosen to express myself separately.

We heard this appeal on a preliminary point raised by the appellant

that the appeal of the Advocate-General of Maharashtra filed before
the Bar Council of India was incompetent as the Advocate-General
did not fall within the expression a person aggrieved' to whom alone
is given the right of appeal under S. 37 of the Advocates Act of 1961,
against the orders of the Disciplinary Committee of the Bar Council
of the State.

The facts necessary to bring out the controversy may be briefly stated.
The appellant is an advocate from Maharashtra. The Bar Council of
the State of Maharashtra had called upon him suo motu to show cause
why he should not be held guilty of misconduct. It appears that the
appellant was convicted before a Summary Court in London on a
charge of pilfering some articles from departmental stores and
sentenced to a fine. The record of the proceedings in London was not
before the Bar Council of the State and action was taken on the basis
of a brief report of the incident in a newspaper. The appellant
explained before the disciplinary committee of the Bar Council of the
State that he was the victim of a misunderstanding but as he had no
means of defending himself effectively, he was found guilty and
received a light sentence of fine. He explained how he had fallen into
this unfortunate predicament and did not know how to extricate
himself. The order of the Summary Court was not a speaking order
and the proceedings were summary. The disciplinary committee were
satisfied that there was no reason to hold him guilty of professional or
other misconduct. They, therefore, ordered that the proceedings be
filed.

The Advocate-General of the State, who was sent a notice of the

proceedings, as is required by the second sub-section of S. 35, and
had appeared before the committee, purporting to act under s. 37 of
the Act filed an appeal before the Bar Council of India. It was heard
by the disciplinary committee of the Bar Council of India. The
advocate objected that the Advocate-General had no locus standi to
file the appeal. The objection was overruled and the appeal was
accepted. The advocate was held guility of misconduct and suspended
for a year from practice. The advocate now appeals under s. 38 of the
Act to this Court. His appeal raises questions of merit but he contends
at the threshhold that the Advocate-General was not competent to file
the appeal under s. 37 of the Act.

The point in controversy before the disciplinary committee of the Bar

Council of India and now before us, is a short one. It is : whether the
Advocate-General can be said to be a person aggrieved' by the order
of the disciplinary committee of the Bar Council of the State Having
heard this point in detail we took time to consider. I am of the opinion
that it must be held in favour of the advocate and the order of the
disciplinary committee of the Bar Council of India, now under appeal
before us, must be: set aside on this short ground without going into
the merits of the-case.

Section 37 of the Advocates Act 1961 reads "37. Appeal to the Bar
Council of India.

(1) Any person aggrieved by an order of the disciplinary committee of

a State Bar Council made under section 35 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 thereon as it
deems fit."

The expression a person aggrieved' is not new, nor has it occurred for
the first time in the Advocates Act. In fact it occurs in several Indian
Acts and in British Statutes for more than a hundred years. In the
latter a right of appeal to a person aggrieved' is conferred in diverse
contexts. It occurs in the Ale House Act, the Bankruptcy
Acts, Copyright Act, Highway Act, Licensing Acts, Milk and Dairies
(Amendment) Act, Rating and Valuation Act, Summary Jurisdiction
Act, Union Committee Act, Local Acts, in certiorari proceedings and
the Defence of Realm Regulations to mention only a few. The list
of Indian Acts is equally long.

As a result of the frequent use of this rather vague phrase, which

practice, as Lord Parker pointed out in Dealing Corporation v.
Jones(1), has not been avoided, in spite of the confusion it causes,
selections from the observations of judges expounding the phrase in
the context of these varied statutes were cited before us for our
acceptance. The observations often conflict since they were made in
different contexts and involved the special standing of the party
claiming the right of appeal. Yet these definitions are not entirely
without value for they disclose a certain unanimity on the, essential
features of this phrase, even in the diversity of the contexts. The font
and origin of the discussion is the well-known definition of the phrase
by James L.J. in In Re Sidehotham Ex. j. Sidebotham(2). It was
observed that the words person aggrieved' in s. 71 of the Bankruptcy
Act of 1869 meant :

" not really a person who is disappointed of a benefit which he might

have received, if some order had been (1) L. R. [1959] 1 Q. B. D. 384.
(2) (1880) 14 Ch. D. 458 C. A made. A person aggrieved, must be a
man who had suffered a legal grievance, a man against whom a
decision has been pronounced which had wrongfully deprived him of
something or wrongfully refused him something or wrongfully
affected his title to something."

The important words in this definition are a benefit which he might

have received' and a legal grievance' against the decision which
wrongfully deprives him of something' or affects his title to
something.

The definition was held in later cases to be not exhaustive and several
other features of the phrase were pointed out. Thus under the
Bankruptcy Acts, where the Board of Trade summoned to support the
validity of the appointment of a trustee, went before the judge, and
failed, it was considered a person aggrieved' on the principle that a
person who is brought before the Court to :submit to its decision, but
not a person who is heard in a dispute between others must be treated
as a person aggrieved' (see In Re Lamb Ex., p. Board of Trade(1) per
Lord Esher). Here again the words to notice are brought before the-
court to submit to its decision that, is to say, a person who is in the
nature of a party as contra-distinguished from a person who is next
described as a person who is heard in a dispute between others. To
distinguish between these two positions Ist may refer to a few more
decisions. In In Re Kitson, Ex. p. Sugden (Thomas) & Sons Ltd.(2), it
was further explained that.
"the mere fact that an order is wrongly made does not of itself give a
grievance to a person not otherwise aggrieved."

(per Phillimore J.) It was added that a person deprived of the fruits of
litigation which he had instituted in the hope for them, is a person
aggrieved'. Similarly, a creditor who did not wish an adjudication
order, to be made was held not-to be a person aggrieved-See In Re
Brown Ex. p. Debtor v. Official Receiver(3). The utmost that this
series of cases goes is to be found in the observations of James L.J. in
Ellis Ex. p. Ellis(4) that even a person not bound by the order of
adjudication must be treated as a person aggrieved' if the order
embarrasses him. In a later case (In Re Woods Ex. P. Ditton) (5)
Cotton L.J. held that even so the person must be aggrieved by the very
order and not by any of the consequen- ces that ensue. This was
clarified in R. v. London County Keepers of the Peace and
Justices(6), by Lord Coleridge C.J. while (1) [1894] 2 Q. B. D. 805 at
812.

(3) [1943] Ch. D. D. 177.

(5) [1879] 40 L. T. 297 C.A. 79..

(2) [1911] 2 K. B. 100 at 112-114.

(4) [1876] 2 Ch. D. 707.

(6) [1890] 20 Q. B. D. 357 at 361.

dealing with the Highway Act, denying the right of appeal in these
words "Is a person who cannot succeed in getting a conviction against
another a person aggrieved ? He may be annoyed at finding that what
he thought was a breach of the law is not a breach of law; but is he
aggrieved because some one is held not to have done wrong ? It is
difficult to see that the section meant anything of the kind. The
section does not give an appeal to anybody but a person who is by the
direct act of the Ma-

gistrate aggrieved-that is who has had something done or determined

against him by the Magistrate."
These observations again show that the person must himself suffer a
grievance, or must be aggrieved by the very order because it affects
him.

Two cases which may usefully be seen in the same context may next
be mentioned. In Jennings v. Kelly(1) in relation to the Government
of Ireland Act 1920, Lord Wright did say that if a person was treated
in certiorari proceedings as a competent party and notice was served
on him as being a proper party he would be a person aggrieved.' The
point to bear in mind is that the person must be treated as a party.
However the force of the observation was considerably weakened
because the party there was ordered to pay costs and the right of
appeal was held to be available on that limited ground. Further
qualification is to be found in In Re Riviere (1884) 26 Ch. D. 48
where Lord Selborne observed pro ratione voluntas; the applicant
must not come merely saying I do not like this thing to be done, it
must be shown that it tends to his injury or to his damage, in the legal
sense of the word."

The locus standi of the person aggrieved must be found from his
position in the first proceeding and his grievance must arise from that
standing taken with the effect of the order on him.

These cases are of course far removed from the one before me and as
Branwell L.J. observed in Robinson v. Currey(2) the expression is
nowhere defined and, therefore, must be construed by reference to the
context of the enactment in which it appears and all the
circumstances. He pointed out that the words are ordinarily English
words, which are to have the ordinary meaning put upon them., (1)
[174] A. C. 206.

(2) [1881] 7 Q. B. D. 465, 470. C. A.

From these cases it is apparent that may person who feels

disappointed with the result of the case is not a Person aggrieved. He
must be disappointed of a benefit which he would have received if the
order had gone the other way. The,-order must cause him a legal
grievance by wrongfully depriving him of something. It is no, doubt a
legal grievance and not a grievance about material matters but his,
legal grievance must be a tendency to injure That the order is wrong
or that it acquits some one who he thinks ought to be convicted does
not by itself give rise to a legal grievance. These principles are
gathered from the cases cited and do not, as I shall show later, do
violence to the context in which the phrase occurs in,the Advocates
Act. Although I am aware that in Seven Oaks Urban District Council
v. Twynham(1) Lord Hewart C.J. uttered words of caution, again
emphasised by Lord Parker C.J. in Ealing Corporation v. Jones(2), in
applying too readily the definitions given in relation to other statutes
but I do not think I am going beyond what Lord Hewart C.J. said and
what Lord Parker C.J. did in the case. Lord Parker observed ".... As
Lord Hewart C.J. pointed out in Seven Oaks Urban District Council v.
Twynam : But as has been said again and again there is often little
utility in seeking to interpret particular expressions in one statute by
reference to decisions given upon similar expressions in different
statutes which have been enacted alio intuitu. The problem with
which we are concerned is not, what is the meaning of the expression
aggrieved' in any one of a dozen other statutes, but what is its
meaning in this part of this statute ?' Accordingly, I only look at the
cases to which we have been referred to see if there are general-
principles which can be extracted which will guide the court in
approaching the question as to what the words person aggrieved'
mean in any particular statute." If I may say respectfully I fully
endorse this approach. I am now in a position to examine the
Advocates' Act but before so I must refer to a case near in point to this
case, than any considered before.

The case is reported in Attorney General of Gambia v. Pierrie Saar

N'jie(3). A legal practitioner was held guilty of professional
misconduct but was acquitted on appeal and an appeal was taken to
the Judicial Committee against the decision of the West African Court
of Appeal. This involved consideration of (1) [1929] 2 K. B. 440, 443.

(3) [1961] A. C. 617.

(2) L. R. [1959] 1 Q. B. D. 384.

whether the Attorney General could be said to be a person aggrieved'.
The facts need to be stated a little fully as both sides rely upon the
observations of Lord Denning and they need to be explained
carefully.

A barrister (a member of the English Bar) and also a Soli- citor (the
two professions appear to be united in the Gambia) practising in the
Supreme Court of the Gambia was charged with professional
misconduct and an order was made, September 22, 1958, by the
Deputy Judge (Abbot J.) striking off his name from the roll of that
Court, and directing that the matter be reported to the Masters of the
Bench of his Inn. On June 5, 1959 the West African Court of Appeal
(Bairamian, Ag.P, Hurley Ag. J.A. and Ames Ag. J.A.) set aside the
order on the ground that the Deputy Judge had no jurisdiction. The
Attorney General of the Gambia thereupon sought leave to appeal to
Her Majesty in Council but this was refused. Then a petition was
made for. special leave. Special leave was granted subject to the
preliminary objection by the respondent that no appeal lay at the inst-
ance of the Attorney General. The preliminary objection was rejected.

Section 31 of the West African (Appeal to Privy Council) Order in

Council 1949 under which special leave was asked reads :

,Nothing in this order contained shall be deemed to interfere with the

right of His Majesty upon the humble petition of any person
aggrieved by any judgment of the court, to admit his appeal therefrom
upon such con- ditions as His Majesty in Council shall think fit to
impose.
In the Gambia disciplinary jurisdiction over barristers and solicitors is
embodied in Rules of the Supreme Court 1928. Under those rules the
Supreme Court' Judge (and there is only one) admits and enroll
barristers and solicitors of the Court, and Schedule I, Order 9, r. 7
says that :-
"The Judge shall have power, for reasonable cause, to suspend any
barrister or solicitor from practising within the jurisdiction of the
court for any specified period, or order his name to be struck off the
roll of court."

Then there is the West African Court of Appeal and it hears appeals
from the Supreme Court' in civil and criminal matters. In an earlier
case in which a certain Mr. Mccauley was struck off the roll of the
Supreme Court of Sierra Leone and Mr. Mccauley sought to appeal
to. the Full Court of West Africa it was ruled by the Full Court that
the decision of the Chief Justice was not a decision of the Supreme
Court' and was, therefore, not appealable and that the only remedy
was to obtain special leave to appeal to the Privy Council (see W. E.
A. Mccauley' v. Judges of the Supreme Court of Sierra Leone and
Anr.(1). The legislature' then added s. 14 which provided:

"An appeal shall lie to the Court of Appeal from any order of the
judge suspending a barrister or solicitor of the Supreme Court from
practice or striking his name off the roll, and for the purposes.- of any
such appeal any such order shalt be deemed to be an order of the
Supreme Court."

The words of the section show that the legislature did not regard a
decision in disciplinary matters as a judgment of a court but only
deemed it to be so.

The Full Court on the appeal of N'Jie from the order of the Deputy
Judge held that a Deputy Judge could not deal with any matter which
was not a proceeding in the court in the exercise of judicial power.
The Judicial Committee held that this was exercise, of judicial power.
Then the preliminary objection was considered. The objection was
that the Attorney General had no locus standi not being a person
aggrieved. This was overruled by the Judicial Committee.

Lord Denning referred to the definition of James L.J. in In Re

Sidebotham Ex. p. Sidebotham,(2) and said that if the definition were
to be regarded as exhaustive and were held applicable, an aggrieved
person' would be only a person who was a party to a lis, a controversy
inter partes and had a decision given against him. The Attorney
General would not come within this restricted definition as there was
no suit between two parties when disciplinary proceedings were
started ex mero motu by the court or at the instance of the Attorney
General or some one against a legal practitioner. But the definition of
James L.J. was not exhaustive and the words person aggrieved, were
of wide import and should not be subjected to a restricted
interpretation. They included not a busy body but certainly one who
had a genuine grievance because an order had been made which
prejudicially affected his interests. Posing the question did the
Attorney General have a sufficient interest', the Judicial Committee
answered he had. The Attorney General in a Colony represented the
Crown as the guardian of public interest and it was his duty to bring
before the Judge a case of misconduct to warrant action. Then Lord
Denning proceeded to distinguish two kind-, of cases to determine if
the Attorney General would be a person aggriev- (1) L. R. [1928J A.
C. 344.

(2) [1880] 40 Ch. D. 458 (C. A.) ed.' The first was a case where the
judge acquitted the practitioner. In such a case no appeal was open to
the Attorney General under the Supreme Court Ordinance, and Lord
Denning added "He has done his duty and is not aggrieved". In other
words, he did not come within the words of the 3 1 st section of the
Order in Council. The Attorney General could not, therefore, ask for
special leave as a person aggrieved'. But the case was different if the
judge found the practitioner guilty and a Court of Appeal reversed the
decision on a ground which went to the root of the jurisdiction of the
judge or was otherwise a point in which the public interest was
involved. In that case the Attorney General was a person aggrieved'.

The observations of Lord Denning clearly meant that the Attorney

General could not pose as a person aggrieved' to seek to bring a
simple case of acquittal for reversal by the Judicial Committee under
the 31st section of the Order in Council for he could not be regarded
as a person aggrieved'. The remark was made perhaps to repel an
argument that every case of acquittal would make the Attorney
General an aggrieved person'. Lord, Denning said that this was not the
true position. The Attorney General could only move the judge and
there his duty ended. The law gave him no express right of appeal and
he could not claim to be a person aggrieved'. He could only invoke
the 3 1 st section if he could make out his grievance and it was found
to be as a person representing the Crown and the guardian of public
interest seeking to get reversed a decision which struck at the root of
the jurisdiction of the disciplinary judge, by denying that the Deputy
Judge was exercising judicial power under s. 7 of the Supreme Court
Ordinance. The Crown was aggrieved by this decision and the,
Attorney General representing the Crown was an-aggrieved person.
The scheme of the law under which the disciplinary action was taken
and the appeal to the Privy Council was brought gave the true
connotation of the expression person aggrieved'. In those cases in
which no question of public interest was involved the Attorney
General even if he had moved the judge and got an adverse decision
could not be regarded as aggrieved but in a case in which, apart from
the merits of the case against the practitioner, some grave I question
of public importance was involved, the Attorney General representing
the Crown could be regarded as. a person aggrieved'.

It was presumably after reading this case and understanding it as I

have done, that the Advocate-General set about making out a question
of public importance. He did not seem only to get the decision
overturned on facts. This is what he said :

"The appellant has filed this appeal as the Advocate General of

Maharashtra. Under the Advocates Act, 1961, (as under the Indian
Bar Councils Act, 1926), the Advocate General represents the public
interest in every disciplinary inquiry. Under sec. 35 of the Advocates
Act, 1961, the Advocate General is entitled to notice in respect of
every disciplinary inquiry, is entitled to have an opportunity of being
heard before the disciplinary committee passes any order. This appeal
raises very important questions of principle as regards the effect of a
conviction of an Indian Advocate of an offence recognised by all
civilised countries as an offence involving moral turpitude. The
question raised also related to the requirements of natural justice in a
criminal court, and the effect of the judgments of the Supreme Court
on the subject. It raises the further question whether an Indian
Advocate convicted of an offence involving moral turpitude by a
Court outside India is immune from disciplinary action because a
minor dif- ferences of procedure in such countries where such trial
has been held, in complete accord with principles of natural justice.
The profession of an advocate is an honourable profession and the
disciplinary provisions of the Advocates Act are designed to secure
that per guilty of offences involving moral turpitude are subject to
appropriate disciplinary action."

It is obvious that the Advocate-General has attempted to use the

observations of Lord Denning in the Gambia case and wishes to plead
that he enjoys a special position in the Bar and under the Advocates
Act and therefore is entitled to appeal as a ' person aggrieved'. This
was the line adopted by Mr. M. C. Setalvad, counsel for the Bar
Council of India. On the other band, Mr. V. S. Desai appearing for the
Advocate General argued that the Advocate-General having notice of
disciplinary proceedings, in any event, must be treated as a person
aggrieved' within ss. 35 and 38 of the Advocates Act. I shall consider
the narrow question presented by Mr. Setalvad latter. I shall first take
up for consideration the larger question and the more general -
,application of the expression person aggrieved.-, In support of his
contention Mr. V. S. Desai cited three cases from this Court, one from
the Judicial Committee and one from the Bombay High Court. They
all relate to disciplinary proceedings and I may begin by considering
them.

The case of the privy Council reported in Advocate General of

Bombay & Ors. v. Phiroz Rustamji Bharucha(1) was next cited. It
was an application for special leave by the Advocate General of
Bombay in a proceeding relating to professional misconduct of an
advocate. The standing of the Advocate General was questioned. The
report in the Bombay Law Reporter Series(2) reproduces more fully
the arguments than. the official report and we were referred to the
arguments. The point was not debated and there does not appear to be
a pronouncement on this point either during the course of argument or
in the judgment since special leave was refused on another ground.
Mr. Desai says that if the Judicial Committee had found substance in
this objection they would have ruled out the Advocate General on this
ground alone. There is no reason to think that the objection was
considered at all. I cannot derive any assistance from this ruling
because the prerogative of the Crown to grant special leave as of
grace in any case was always there irrespective of the standing of the
Advocate General. The Privy Council often granted special leave and
even heard appeals on certificates wrongly granted. (See Sevak
Jeranchod Bhogilal v. Dakore Temple Committee(2) and the cases
collected in Halsbury Laws of England (3rd Edn.) Vol. 9 p. 380
paragraph 886 note (h). This prerogative the Judicial Committee has
exercised on behalf of the Crown particularly in cases of general
interest see ibid p. 379 s. 885 note (s). The provisions of the former s.
112 of the Code of Civil Procedure show the extent of the prerogative.
Therefore. because the Privy Council refused special leave on one
ground rather than another cannot import a rejection of the objection
as to the standing of the Advocate General. Next we have an
unreported decision of a Division Bench of this Court reported in B.
M. Madani v. Commissioner of Work- men's, Compensation.
Bombay(3). In that case the anneal was taken by the Commissioner
for enhancement of penalties against the delinquent advocate and the
penalty was in fact increased. This Court held that he was entitled to
do so as a -person aggrieved. The Particular misconduct was
committed in relation to a claimant before the Commissioner. The
Advocate had pocketed the travelling allowance granted by the
Commissioner to the widow of a deceased workman. There may be
some doubt whether the Commissioner was a person aggrieved' by the
Denalty imposed in the first instance but I do not pursue this matter.
The case can be justified on the dictum in some cases that a party
which moves the court or a Person brought before the court to be
bound by its order May be a person aggrieved., See for example the
case of the Official Receiver in Re Payne Ex p. Castle Mail Packets
(1) 37 Bom. L. R. 722 (PC) (2) A. I. R. 1915 P. C.

155. (3) C. A. 877 of 1968 decided on October 10, 1968.

69Sup.CI(P)71-12 Co.(1), and In Re Lamb Ex. p. Board of Trade
already considered by me. Madani's case does not help to resolve the
dispute centering round the Advocate-General. The next case is
reported in Bhataraju Nageshwara Rao v. The Hon'ble Judges of the
Madras High Court and others(2). That case arose under the Bar
Councils Act, 1926 when the Judges exercised disciplinary power. In
the case before the Supreme Court the Judges of the Madras High
Court were shown as respondents. This Court observed at page 1064
as follows "Before parting with this appeal we desire to say that it
appears to us that it was wholly wrong and inappropriate for the
appellant to have made the Honourable Judges of the Madras High
Court respondents to this appeal. It appears that in some cases
involving contempt of Court the Honourable Judges have been made
parties. It is not necessary for us to express any opinion on this
occasion as to the propriety of that procedure in contempt cases but
we are clearly of the opinion that in an appeal arising out of a
proceeding under the Bar Councils Act the appropriate parties should
be the advocate concerned, the complainant, if any, the Bar Council
or the secretary thereof and the Advocate General of the State
concerned to whom notice have to be issued under section 12(3) of
the Indian Bar Councils Act."

This does not advance the case of the Advocate General of

Maharashtra any further.

The last case of this Court is Municipal Corporation of the City of

Bombay v. Chandulal Shamaldas Patel and Ors.(8). In land
acquisition cases started for the benefit of the Municipal Corporation
certain notifications issued under the Land Acquisition Act were set
aside by the High Court, and the Municipal Corporation sought to
appeal. It was held not to be a person grieved'. This case, even if I
were to- accept it as correctly decided, does not assist us in relation to
our Act passed with a different intent and purpose and using the
words in another context. The last case is from Bombay but it did not
discuss the point and cannot be held to have laid down a precedent. It
is useless to refer to it.

I now proceed to examine the larger question whether by rea- son of

the provisions of the Advocates Act the Advocate General of the State
enjoys such position that he must necessarily be treat-

(1) [1886] 18 Q. B. D. 154 C. A.

(2) [1955] 1 S. C. R. 1055.

(3) C. A. No. 1716 of 1967 decided on August 1, 1970.

ed as a person aggrieved entitling him to file an appeal.For this

purpose we have to examine critically the provisions of the Act to
discover if the claim can be entertained. The Advocates Act was
passed to amend and consolidate the law relating to legal practitioners
and to provide for the constitution of bar Councils and an All India
Bar. It replaced the earlier Acts governing the legal profession
particularly the Indian Bar Councils Act 1926. Prior to the passing of
the Advocates Act, the enrollment and discipline of legal practitioners
was in the hands of the courts and in the case of the advocates the
High Court entertained and determined cases of misconduct against
them. Now this jurisdiction is completely transferred to the Bar
Councils of the States and the Bar Council of India. In the Bar
Councils of the States (except Delhi) the Advocate-General of the
State is an ex officio member. In Delhi the Additional Solicitor-
General takes the place of the Advocate-General. Other members are
elected. In the Bar Council of India, the Attorney-General and the
Solicitor- General are ex officio members and the other members are
elected one each by the State Bar Councils. In the Union Territory of
Delhi the Additional Solicitor-General is ex officio member. The
functions of the Advocate-General are not different from those of the
other members in so far as the affairs of the Bar Council are
concerned. The only matters where the Advocate-General, the
Attorney-General and the Solicitor-General and the Additional
Solicitor-General are mentioned are these. The Act gives a right of
pre- auidence over other advocates to the Attorney-General, the
Solicitor-General, the Additional Solicitor-General and the Advocate-
General. The right of pre-audience gives them a standing for hearing
of cases but does not confer on them any other rights. The
magniloquent phrases such as Leader of the Bar, Keeper of the
Conscience of the Bar have no meaning neither now, nor before under
the Bar Councils Act of 1926. They are just honorific titles given by
courtesy but are not grounded on law. Indeed the Keepers of the
Conscience of the Bar are the Bar Councils and the Leader of the Bar
may be someone who may even have refused to accept Advocate-
Generalship.
The functions of the Bar Councils of the States and the Bar Council of
India throw some light on the remaining functions of the Advocate-
General and may first be seen. Section 6 of the Act lays down the
functions of the State Bar Council and s. 7 those of the Bar Council of
India. Apart from certain administrative functions. which these
councils, which, are bodies corporate, perform, their functions in
relation to the Bar are somewhat different. Both have their own rolls
and they prepare and maintain the rolls. The State Bar Council
entertains and determines cases of misconduct of advocates oil its roil
and safeguards the rights, privileges and interests of advocates on its
roll. The Bar council of India lays down the standards of professional
conduct and etiquette of, advocates, the procedure to be followed by
its disciplinary committee and the disciplinary committee of each of
the State Bar Councils. The Bar Council of India also safeguards the
rights and privileges and interests of advocates and exercises general
supervision and control over State Bar Councils. It also deals with and
disposes of any matter arising under the Advocates Act which may be
referred to it by a State Bar Council. There are other functions which
relate to the education etc. of those who wish to join the legal
profession. The Bar Council of India maintains a common roll of
advocates. The Bar Councils also decide in relation to their rolls all
questions of seniority. The State Bar Councils and the Bar Council of
India constitute one or more disciplinary committees and under
Chapter V questions of the conduct of advocates on their respective
rolls are referred to them. The disciplinary committee of the Bar
Council of India exercises superior powers inasmuch as it hears
appeals from the orders of the disciplinary committees of the State
Bar Councils and may even of its own motion withdraw for inquiry
before itself for disposal, any proceeding for disciplinary action
against an advocate pending before the disciplinary committee of any
State Bar Council.

The disciplinary proceedings commence both before the State Bar

Council and the Bar Council of India on a complaint or otherwise
made respectively to the State Bar Council or the Bar Council of
India. The Bar Councils in either case refer them for disposal to their
respective disciplinary committees. The disciplinary committee in
each case can reject the complaint summarily, but if it proceeds to
hear the matter further it causes a notice thereof to be sent to the
advocate concerned and to the Advocate-General of the State or the
Attorney-General of India, as the case may be. The disciplinary
committee after giving the advocate concerned and the Advocate-
General or the, Attorney General, as the case may be, an opportunity
to be heard" makes an order either dismissing the complaint or where
the proceedings are found to be not fit for consideration and are
started at the instance of the Bar Council, ordering that they may be
filed. The committee may, if the advocate is found guilty, reprimand
him or suspend him from practice for such period as it deems fit, or
may remove him altogether from the roll of advocates. The Advocate-
General or the Attorney-General, as the case may be, need not appear
personally but may appear through an advocate.

From the decision of the disciplinary committee of the State Bar

Council an appeal lies to the bar Council of India which is heard by
the disciplinary committee of the Bar Council of India which may
pass such orders thereon as it deems fit. From the decision or the
disciplinary committee of the Bar Council of India an appeal lies to
this Court. The appeals can be taken by a ' person aggrieved' by the
order of the disciplinary committee of tile State Bar Council or the
Bar Council of India, as the case may be. It is in this context that we
have to determine whether the Advocate-General can be regarded as a
person aggrieved'. In view of the common roll maintained by the, Bar
Council of India it appears to me that if anybody represents the Bar it
would be the Bar Council of India and in the case of the States, the
Bar Council of the, State. The Advocate-General has no right to speak
on behalf,, of the body of the advocates as if he represented them and
their interests. Neither is this privilege expressly conferred on him,
nor can it be implied from any of the provisions of the Act. The
question, therefore, arises : in what capacity does the Advocate-
General appear before a disciplinary committee ? It is obvious that he
is not a prosecutor on behalf of the Bar Council because if he was
one, his presence would be more necessary at the stage at which the
disciplinary committee considers in limini to decide whether the
matter should be proceeded with at all. The next question is : why is
he summoned at all ? In my opinion, the Advocate-General is not
noticed and brought before the court because he is a prosecutor or is
to be bound by the order of the disciplinary committee. He represents
no interest there and is heard merely because he is the chief counsel of
the State and therefore his assistance at the hearing is useful. The fact
that he need not appear by himself and may appear through an
advocate renders his position a little weaker in the matter of his
grievance If he is to be treated as a perso n aggrieved' he must argue
the case himself. The fact that he appears through a counsel shows
that the intention is merely to have the opinion of a person who is
neither siding with the complainant nor with the advocate and who
will thus have unbiased and impartial approach to the case. The
Advocate-General is generally a lawyer of some standing having
made a mark in the profession and his contribution to the
deliberations of the disciplinary committee is welcome because thus
the disciplinary committee is helped to reach a proper conclusion.

If he is not a person summoned to be bound by the order but a person

who is heard in a dispute between others merely to be of assistance in
reaching the right conclusion he can hardly have a grievance. The
Advocate-General must after he has done his duty leave the matter to
the complainant and the advocate or the Bar Council to take the
matter further if they choose. In no event the Advocate-General is in
the nature of a party having independent rights which he can claim are
injured by the decision. The decision does not deny him anything nor
does it ask. him to do anything. It is thus that Lord Denning says that
in these disciplinary proceedings the Attorney-General is not' a party
as in a lis and after the decision, his duty ends. Lord Denning points
this out clearly by saying that the Attorney-General in that case could
not have been aggrieved by the order of the Deputy Judge if he had
acquitted the delinquent advocate in that case The Attorney-General's
interest was found by Lord Denning in relation to the Crown and the
Colony and that too for the special reason that appeal court had
denied that the Deputy Judge possessed jurisdiction to hear the case.
In our country the Advocate-General does not represent the Executive
or the Legislature or the Judiciary in. disciplinary proceedings before
the disciplinary committee. His function is advisory and more akin to
an amicus curiae He is not to take sides except in so far his arguments
lend weight to the case of the one side or that of the other. Beyond
that he is not interested in the dispute either in his personal capacity or
in his capacity as an Advocate- General. He does not represent the
Government in these proceedings. If the Government was interested
the notice would have gone to it. In other statutes, where the Central
Government is vitally interested, as for example, in the Chartered
Accountants Act, the notice does not go to the Advocate-General but
to Government and the government appears through the Advocate-
General. The Advocate-General under the Act finishes his duty when
the hearing is over and he cannot be considered to be a party
interested or a perso n aggrieved'. I do not find anything in the Act
which indicates that the Advocate-General is to be treated as a person
aggrieved' by a decision whether in favour of the advocate or against
him. Indeed it would have been the easiest thing to give a right of
appeal to the Advocate- General eo nomine without including him in
the compendious phrase a person aggrieved'. If he is not noticed, the
order would be held to deny him something which the law entitled
him to. That is quite different. The larger proposition contended for
by Mr. Desai is therefore not acceptable to me.

This brings me to the narrow ground on which Mr. Setalvad very

properly rested the case of the Bar Council of India. That narrow
ground is that in this case there were several Points of general public
interest which needed to be solved and therefore, if the decision of the
disciplinary committee of the State Bar Council was wrong, the
Advocate-General in the public interest could take the matter further.
I do not think that I can subscribe to this approach either in this case.
The Advocate-General presented his views that a conviction in
England showed moral turpitude in the advocate. I do not think that
this inference necessarily follows. The advocate explained that he was
held guilty in a summary court and received a small fine because he
was not in a position to prove his innocence before the Magistrate.

Now in disciplinary proceedings the advocate was not estopped from

questioning the charge that be was guilty of corrupt practice. In a civil
proceeding the decision of a criminal court is not res judicata. To give
an example, if a person is involved in a traffic offence in which some
one is injured he may in the criminal court receive a light sentence but
if he is sued in a civil court for heavy damages he pan plead. and
prove that he was not negligent or that accident was due to the
contributory negligence of the defendant. The decision of the criminal
court would not preclude him from raising this issue before the civil
court. The advocate here explained that he was held guilty before the
Magistrate in the circumstances in which he was placed. The. fact of
his conviction, as well as his full statement bearing on his conduct
were before the disciplinary committee of the State Bar Council. They
had to choose between the two, that is to say, the result of a summary
trial Without going into merits and proof of the misconduct. Having
examined the advocate and seen the record, the disciplinary
committee of the State Bar Council chose to accept the plea of the
advocate and held that he was not guilty. They were also satisfied that
the summary proceedings in the criminal trial in England offended
against the principles of natural justice. They were entitled to this
view on which much can be said on both sides. If the Advocate-
General's view of the case was not accepted by the disciplinary
committee he could not have any grievance. He could not make this
into his own cause or a cause on behalf of persons he did not
represent. He had done his duty and the matter should have rested
there. For this reason I am of the view in this case the Advocate-
General was not a person aggrieved, within the meaning of s. 37 of
the Advocates Act even on the narrow ground and the appeal filed by
him before the disciplinary committee of the Bar Council of India was
incompetent.

The conclusion which I have reached does not mean that I have gone
into the merits of the advocate's plea. Nor does it indicate that 1,
sitting as a judge. would have accented the plea of the advocate, if I
were to decide the ease on facts. That is a matter quite beside the
point. I refer to the plea because it was raised and was accepted by his
peers on the' disciplinary committee.

I would. therefore, allow the appeal and set aside the order of the
disciplinary committee of the Bar Council of India.

Mitter,J. On the basis of a news item in the Times of India of August

27, 1966 the Bar Council of Maharashtra in exercise of its powers
under S. 35 of the Advocates Act, 1961 issued a notice to the
appellant to face an inquiry into his conduct by its disciplinary
committee. The said committee exonerated the appellant of the charge
levelled against him and held that he was not guilty of any
misconduct, professional or otherwise. Relying on the provisions of S.
37 of the said Act the Advocate-General of Maharashtra who had
appeared before the said committee preferred an appeal to the Bar
Council of India. The Disciplinary Committee of the Bar Council of
India disagreed with the finding of the disciplinary committee of the
Bar Council of Maharashtra observing that the conduct of the
appellant which was investigated into before the State Bar Council
was quite undeserving of an advocate and directed his suspension
from practice, for a period of one year. The appellant has come tip in
appeal to this Court, and has urged a preliminary point that the appeal
by the Advocate- General to the Bar Council of India was
incompetent and the finding and order of the disciplinary committee
of the said body ought to be set aside on that ground alone without
our going into the facts of the case.

Notice of this hearing was given to the Advocates-General and the

Bar Councils of all the States as also the Attorney- General of India
and we have had the benefit of arguments advanced before us not
only on of the Advocate-General for the State of Maharashtra but also'
on behalf of the Bar Council of India, the Attorney-General of India
and some of the Advocates-General of the States.

The determination of this question depends on the interpretation of S.

37 of the Advocates Act, 1961 (hereinafter referred to as the Act') "(1)
Any person. aggrieved by an order of the disciplinary committee of. a
State Bar Council made under section 35 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 thereon, as it
deems fit."

To put the matter in a nut-shell the question is, "Is the Advocate-
General of a State who appears before the disciplinary committee of a
State Bar Council in pursuance of a notice given' to him under s.
35(2) of the Act a person aggrieved' within the meaning of the words
used in s. 37 ?".

To decide this question we have to look into the Act to find out the
role of the Advocate-General of a State in proceedings of this kind.
The object of the Act is to amend and consolidate the law relating to
legal practitioners and to provide for the constitution of Bar Councils
and an All- India Bar. All the States and the Union territories are to be
under the jurisdiction of named State Bar Councils and there is also to
be a Bar Council of India for the territories to which the Act is
extended. Generally speaking a State Bar Council is to consist of a
number of members including the Advocate-General of the State ex
officio, while the Attorney-General of India ex officio is to be a
member of the Bar Council of India. The other members of the Bar
Councils are to be elected in terms of the Act. Under s. 6 the functions
of a State Bar Council are to be inter alia

(a) to admit persons as advocates on its roll;

(b) to prepare and maintain such roll;

(c) to entertain and determine cases of misconduct against advocates

on its rail.

S. 7 lays down the functions of the Bar Council of India which are to
be inter alia :

(a) to prepare and maintain a common roll of advocates:

(b) to lay down standards of professional conduct and etiquette for'

advocates; and

(c) to lay down the procedure to be followed by its disciplinary

committee and the disciplinary committee of each State Bar Council.

Under s. 9 a Bar Council has to constitute one or more disciplinary

committees each of which is to consist of three perso ns of whom two
are to be persons elected by the Council from amongst its members
and the third is to be a person co-opted by the Council from amongst
advocates possessing the qualifications specified in the proviso to
sub-s.(2) of s. 3 but is not a member of the council. S. 15 empowers
Bar Councils to make rules to carry out the purposes of the Act.
Chapter III of the Act containing ss. 16 to 28 provides for admission
and enrollment of advocates. the determination of their seniority etc.
The right of an advocate to practice is dealt with in Chapter IV.
Chapter V which contains ss. 35 to 44 deals with conduct of
advocates. The relevant provisions thereof are set out as under-

"35(1) Where on receipt of a complaint or otherwise a State Bar

Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for
disposal to its disciplinary committee. (2) The disciplinary committee
of a State Bar Council, if it does not summarily reject the complaint.
shall fix a date for the hearing of the case and shall cause a notice
thereof to be given to the advocate concerned and to the Advocate-
General of the State. (3) 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.
(4) . . . . . .
(5) Where any notice is issued to the Advocate- General under sub-
section (2) the Advocate-General may appear before the disciplinary
committee of the State Bar Council either in person or through any
advocate appearing on his behalf.
37. Supra.
38. Any person\aggrieved by an order made by the disciplinary
committee of the Bar Council of India under section 36 or section
37 may, within sixty days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the
Supreme Court may pass such order thereon as it deems fit."

S.42 gives the disciplinary committee of a Bar Council the same

powers as are vested in a civil court under the Code of Civil
Procedure in respect of various matters including the summoning and
enforcing the attendance of any person and examining him on oath,
requiring discovery and production of documents etc. and under sub-
s. (2) all proceedings before a disciplinary committee of a Bar
Council are to be deemed judicial proceedings within the meaning
of sections 193 and 228 of the Indian Penal Code. S. 43 empowers the
disciplinary committee of a Bar- Council to make such order as to
costs of any proceedings before it as it may deem fit. S. 44 gives the
disciplinary committee power to review any order passed by it of its
own motion or otherwise.

The above provisions of the Act make it clear that subject to a right of
appeal to this Court under s. 38 the inquiry into charges of misconduct
against an advocate are to be in the exclusive jurisdiction of the Bar
Councils. Any complaint against the conduct of an advocate has to be
preferred before a State Bar Council and when the council has reason
to believe on the strength of such complaint that an advocate on its
roll has been guilty of professional or other misconduct, it has to refer
the case for disposal to its disciplinary committee. The council can
take such a step of its own motion. Section 35(1) shows that it is not
obligatory on the State Bar Council to refer each and every complaint
to the disciplinary committee. It has to be satisfied that there is a
prima facie case for investigation,. It can throw out a complaint if the
same appears to be frivolous. Sub-s. (2) of s. 35 shows that it is not
incumbent on the disciplinary committee of a State Bar Council to
proceed- further with the matter if it takes the view that the complaint
is without substance. It is not obliged to call upon the advocate
concerned to. explain his conduct or to inform the Advocate-General
that it has rejected the complaint summarily. It is only when the
disciplinary committee is satisfied that the complaint ought not to be
rejected out of hand that it has to fix a date for the hearing of the case
and give notice thereof to the advocate concerned and to the
Advocate-General of the State. It is mandatory on the disciplinary
committee to give such a notice to both. Sub-ss. (3) and (5) of s. 35 go
to show that it is not incumbent on the Advocate-General to appear at
the hearing and that it is within his discretion to appear either by
himself or through another advocate of his choice and place his
viewpoint before the disciplinary committee. He is not a party to the
proceedings but he has a right to appear and to make submissions
both on questions of fact and questions of law.

S. 3 7 does not in terms lay down who can prefer an appeal from the
order of the disciplinary committee of the State Bar Council. There
can be no doubt that the advocate agianst whom an order is made
would be a person aggrieved. The State Ba Council cannot be such a
person as the order is made by itself acting through its disciplinary
committee. A member of the public may make a complaint to the
State Bar Council against an advocate on the ground of loss or
damage or any serious Prejudice caused to him by the advocate, be it
negligence or fraud e.g. collusion with the opponent or
misappropriation of any moneys belonging to him and there does not
seem to be any justifying cause for holding that he is not a person
aggrieved by an order which dismisses his complaint. The question
arises as to whether the Advocate-General is a person aggrieved
because the disciplinary committee does not take the same view of the
matter as himself, be it for or against the advocate. To place the
Advocate-General in the category of "person aggrieved' one must be
able to say that the disciplinary committee committed an error which
it was his duty to attempt to set right because of some function
attributable to him as the Advocate-General or some obligation cast
upon him by the Act or the general law of the land to safeguard and
maintain standards of conduct of advocates laid down by the Bar
Council of India. Generally speaking, a person can be said to be
aggrieved by an order which is to his detriment, pecuniary or
otherwise or causes him some prejudice in some form or other. A
person who is not a party to a litigation has no right to appeal merely
because the judgment or order contains some adverse remarks against
him. But it has been held in a number of cases that a person who is
not a party to suit may prefer an appeal with the leave of the appellate
court and such leave would not be refused where the judgment would
be binding on him under Explanation 6 to section 11 of the Code of
Civil Procedure. We find ourselves unable to take the view that
because a person has been given notice of some proceedings wherein
he is given a right to appear and make his submissions, he should
without more have a right of appeal from an order rejecting his
contentions or submissions. An appeal is a creature of statute and if a
statute expressly gives a person a right to appeal, the matter rests
there.

Innumerable statutes both in England and in India give the right of

appeal to "a person aggrieved" by an order made and the provisions of
such statutes have to be construed in each case to find out whether the
person preferring an appeal falls within that expression. As was
observed in Robinson v. Currey(1) the words "person aggrieved" are
ordin ary English words which are to have the ordinary meaning put
upon them'. According to Halsbury's Laws of England (Third Edition,
Vol. 5) page 29 foot-note "h"

"The expression is nowhere defined and must be construed by

reference to the context of the enactment in which it appears and all
the circumstances (1) 7 Q. B D. 465.
Attempts have however from time to time been made to define the
expression in various cases. In Ex parte Sidebotham In re
Sidebotham(1) it was observed by James, L.J. "But the words Person
aggrieved' do not really mean a man who is disappointed of a benefit
which he might have received if some other order had been made. A
person aggrieved' must be a man who has suffered a legal grievance, a
man against whom a decision has been pronounced which has
wrongfully deprived him of something, or wrongfully refused him
something, or wrongfully affected his title to something." The above
definition of James, L.J. was described by Esher, M.R. in Ex Parte
Official Receiver In Re Reed, Bowen & Co.( as not "an exhaustive
definition". His Lordship added "It is an affirmative definition of a
person who may appeal, and at all events it includes a person who has
asked for a decision for which he had a right to ask. and has been
wrongfully refused."
The Queen, v. The Keepers of the Peace and Justices of the County of
London (3) was a case of an appeal by an informant against the
judgment of a justice of the peace upon the hearing of an information
or complaint by the vestry of the parish against a person for
unlawfully and wilfully obstructing the free passage of a certain
highway. The relevant section provided:
"If any person shall think himself aggrieved by. any order, conviction,
judgment, or determination made, or by any matter or thing done by
any justice or other person in pursuance of this Act.... such person
may appeal to quarter sessions."
In holding that an informant had no right of appeal Lord Coleridge
C.J. said: "Is a person who cannot succeed in getting a conviction
against another a person aggrieved ?' He may be annoyed at finding
that what he thought was a breach of law is not a breach of law; but is
he aggrieved' because some one is held not to have done wrong ? It is
difficult to see that the section meant anything of that kind."

In Rex v. London Quarter Sessions Ex parte Westminster Cor-

poration(4) a borough council whose cancellation of the registration
of a street trader had been reversed by a magistrate on (1) 14 ch. D.
458 at 465.

(3) 25 Q. B. D. 357, 361.

(2) 19 Q. B. D. 174 at 178.

(4) 512 K. B. 508 appeal by the trader concerned under S. 25 of the

London County Council (General Powers) Act, 1947 was held not to
be a person aggrieved by an order of a court of summary jurisdiction
within the meaning of S. 64 of the Act. The argument advanced on
behalf of the corporation was that it had a public administrative duty
to perform in the regulation of the streets and Having been interfered
with in the execution of that duty by the decision of the magistrate,
they were persons aggrieved by his order. One of the grounds for
refusal of the application by Lord Goddard, C. J. was that the order
made did not directly,affect the borough council in such a way as to
make them "a person aggrieved" within the meaning of the section.
According to the learned Chief Justice what the statute did was "to
substitute the opinion of the magistrate for the opinion of a borough
council". It was said that the court of summary jurisdiction had to take
into account the same matters as the borough council had to take into
account, and if the court thinks that the cancellation of the licence is
not justified, it can restore the licence to the street trader. If the court
of summary jurisdiction refuses to grant a licence, then the street
trader is a person aggrieved, because his livelihood is affected, or an
order is made directly affecting him.

The case of Sevenoaks Urban District Council v. Twynam(1) was

relied upon by counsel appearing for, the Advocate- General of
Maharashtra support his argument that even a person who had no
proprietary or pecuniary interest in the subject matter of the litigation
might be a person aggrieved so as to give him a right to appeal. The
statute in this case was however worded very differently from the
statutes which came up for consideration in the cases noted earlier. S.
68(1) of the Public Health Act, 1925 laid down that:

"Where for the purpose of relieving or preventing congestion of

traffic it appears to the local authority to be necessary to provide
within their district suitable parking places for vehicles"

then that authority may, subject to certain conditions, provide those

parking places and might acquire land suitable for use- as a parking
place. The proviso to the section however laid down that no such
order shall authorise the use of any part of a street so as unreasonably
to prevent access to any promises adjoining the street, or the use of
the street by any person entitled to the use thereof, or so as to be a
nuisance, or be made in respect of any part of a street without the
consent of the authority or person responsible for the (1) [9291] 2 K.
B. 440 at 444.

maintenance of the street. Sub-s. (2) of the section provided that

where a local authority proposes to acquire and for the purpose of
using it as a parking place they are to give notice of the proposal
specifying the land and notify the date within which any objection is
to be sent to them and the notice is to state that a right of appeal was
conferred by the section. Sub-s.(3) provided that before carrying into
effect any proposal of which notice was required to be given the local
authority shall consider any objection which was sent to them in
writing. There was no limit there as to the kind of person making the
objection, or the kind of objection which might be raised. The
respondent, a rate payer, duly gave notice under sub s.(3) on various
grounds but he did not allege the infringement of any personal legal
right and he objected in his capacity as a rate payer and as a member
of the public on grounds common to them all. The urban council
considered the objection and informed him of their decision to
proceed with the scheme. The respondent appealed to petty sessions
which allowed his objection. The appellant appealed to quarter
sessions and took the preliminary objection that the respondent was
not a person aggrieved because he had alleged no infringement of any
legal right personal to him.

Referring to the dicta of James L.J., Esher M.R. and Lopes L.J. in the
above cases Lord Hewart C.J. observed:

"I think this respondent did ask for a decision for which he had a.
right to ask. He did give notice of an objection of which he was
entitled to give notice, but the person making the objection is not to
have an appeal unless he satisfies two conditions : (1) that he is the
author of the objection, and (2) that he is aggrieved by the refusal in
the sense that he has a special and individual right infringed. It seems
to me that upon the fair construction of this sub-section, which is by
no means a common kind of statutory provision, what is meant is that
a person may make an objection and is entitled to a decision upon it,
and if the decision is adverse to him, he may, it he thinks fit and
subject to the usual consequences, appeal from it to a petty sessional
court, and so appealing, may, in consequence of other statutory
provisions, appeal, if need be, to the court of quarter sessions."
According to Avory J.
"There is no limit there [in sub-s. (3)] of the kind of person or the kind
of objection which may be made. it proceeds that after so considering
the objection, they are to give notice of their decision to the person by
whom the objection was made, and any person who is aggrieved by
such decision may appeal. I cannot help thinking that on the plain
words of that statute it was intended to give a right of appeal to any
person who has made an objection to the proposal and has received
notice that objection has been overruled."

In Ealing Corporation v. Jones(1) Lord Parker C.J. remarked that it

was easier to say what will not constitute a person aggrieved than it
was to say what "person aggrieved" included. He observed that a
person was not aggrieved when being a public body it had been
frustrated in the performance of one of its public duties. He amplified
this by saying that "If costs have been awarded in a case against a
local authority, it is clear on the authorities that the local authority
would be an aggrieved person. Equally, if the result of the decision
has been to put some legal burden on the public body concerned, that
has been held to make it a person aggrieved."

According to Donovan J. in the same case-

"The word aggrieved' connotes some legal grievances, for example, a

deprivation of something, an adverse effect on the title to something,
and so on, and I cannot see that this is so here. The local planning
authority has simply been told that it cannot enforce the
discontinuance of the present use of this land by the appellant by
means of an enforcement notice under S. 23."

If one is to be guided merely by the provisions of the Advo- cates Act

it is difficult to see how the Advocate-General can be a person
aggrieved because the State Bar Council takes the view, whatever be
its reasoning, that an advocate on its roll has not been guilty of any
misconduct. The entertaining of complaints, the inquiry into them and
the punishment to be meted out to the advocate are all concerns of the
Bar Council. The Advocate-General no doubt is entitled to a hearing
if the complaint is not rejected summarily. The statute expects him to
take a fair and impartial attitude. He has to render all assistance to the
Bar Council so that a proper decision may be arrived at. His role is
not that of a prosecutor : nor is he a defence counsel on behalf of the
advocate. He is not interested in getting the advocate punished any
more than he is interested in seeing that the character of a fellow
member of, the Bar is cleared even if his conduct be unworthy of an
advocate. (1) [1959] 1 Q. B. 384 at 390.

The Act does not make it obligatory on him to take part in the

proceedings where he thinks that the facts of the case are so plain that
his assistance is not called for. It is only when he feels that a case
requires a careful investigation and proper elucidation of the facts or
the exposition of the law on the subject that he is called upon to
render all assistance in the proceedings. When he chooses to do. so he
does his duty by appearing at the hearing and putting before the
disciplinary committee the facts in their proper perspective and
advancing the proper inference to be drawn therefrom. Once he does
so there is an end of the matter so far as he is concerned.- He cannot
have any grievance because the decision of the Bar Council is' against
his submission or not to his liking. The question then arises as to
whether any, duty is cast on the Advocate-General by reason of his
position to question the decision of the Bar Council if he feels it in the
general interest of the members of the Bar or a wider public to do
so. Art. 165(2) of the Constitution epitomizes the functions and duties
of the Advocate-General in the following words:-

"It shall be the duty of the Advocate-General to give advice to the

Government of the State upon such legal matters and to perform such
other duties of a legal character, as may from time to time be referred
or assigned to him by the Governor and to discharge the functions
conferred upon him by or under the Constitu- tion or any other law for
the time being in force.'.

A notable instance of his statutory duties is furnished by Order

XXVII-A of the Code of Civil Procedure. By the provisions of s. 91
of the Code of Civil Procedure no suit for a declaration and injunction
in the case of a public nuisance can be instituted except by him or
with his consent. Similar powers are given and duties cast on him by
s. 92 C.P.C. in the case of trusts created for public purposes. Section
526-A of the Code of Criminal Procedure gives an Advocate-General
power to apply to the court for the committal or transfer of a case to
the High Court where any person subject to the Naval Discipline Act
or to the Army Act or to the Air Force Act is accused of any of the
offences specified therein. It is not open to the Advocate- General to
intervene in any suit or legal proceeding apart from the provisions of
the Code of Civil Procedure because he thinks public interest is
involved in the matter. Treating the matter historically, it may be said
that in many respects the position of an Advocate-General before
1950 was very similar to that of the Attorney-General in
England. Sections 100 and III of a statute of 1813, 53 George M, C.
155.

L169Sup.CI(P)/71-13 enabled the Advocates-General to exhibit to,

the respective Supreme Courts of Judicature at any of the Presidencies
or to the Recorder's Court at Bombay any information or information
for breaches of Revenue laws etc. as might be taken by the Attorney-
General in the court of Exchequer in England or in the nature of
action or actions at law or of a bill or bills in equity as occasion might
require against any person or persons residing within such jurisdiction
as His Majesty's Attorney-General for the time being was by law
authorised to exhibit. The wording of S. Ill shows that its object was
to dispel doubts which had arisen about the competency of the
Advocate-General or Principal Law Officer of the East India
Company to take such action., S. 114 of the Government of India Act,
1915 empowered the Advocate- General for any Presidency to take on
behalf of His Majesty such proceedings as might be taken by His
Majesty's Attorney-General in England. S. 65(2) of the Government
of India Act, 1935 laid down that it was the duty of the Advocate-
General to give advice to the Provincial Government upon such legal
matters and to perform such other duties of a legal character as may
from time to time be referred or assigned to him by the Governor.

The position of the Attorney-General in England is stated by Hood

Phillips on Constitutional and Administrative Law (Fourth Edition) at
p. 316 to be as follows :
"The Law Officers consist of the Attorney- General and Solicitor-
General for England, and the Lord Advocate and Solicitor-General for
Scotland. They are regarded as the heads of the Bar in their respective
countries, and as such are referees on points of professional etiquette.
The learned author goes on to note at p. 317 "The Attorney-General
represents the Crown in civil proceedings.in which it is specially
concerned. His consent is necessary for the prosecution of certain
offences, e.g. under the Official Secrets Acts. In criminal proceedings
he or the Solicitor-General, or their deputies, prosecute in important
cases.

It is the practice for the Attorney-General to lead in treason and

important constitutional cases. He may also file ex officio criminal
information, though this procedure is now rarely used. He may stop
the trial of an indictment by entering a none prosequi. He may also
take over certain proceedings on the relation of private individuals
(relator actions) e.g. public nuisance etc....... The Attorney-Generalls
procedural privileges include the right to demand a trial at Bar
privilege i.e. now, before a Divisional Court), and the right to choose
the venue for any civil or criminal proceedings in which the Crown is
concerned.' Anson in his treatise on Law and Custom of the
Constitution Volume II, Part I (4th Edition, 1935) describes the
Attorney-General, the Solicitor-General and the Lord Advocate and
the Solicitor-General for Scotland as the chiefs of the legal profession
in their respective countries and states that in England and Northem
Ireland they represent the Bar when the Bar takes collective, action.
So far as England is concerned neither the Attorney-General nor the
Solicitor General appears to have had for a very long time any
function to discharge or any duty to perform when the, conduct of a
barrister or a solicitor was called in question. The power of inquiry
was delegated by the Judges to the Inns of Court so far as barristers
were concerned and as regards solicitors the matter has for some time
been delegated to the Law Society.

It may not also be out of place to note the history of the legislation in
India with regard to enquiries against members of the legal profession
prior to the Act of 1961. Under clause 10 of the Letters Patent of the
High Court of Calcutta of the year 1865 the High Court was to have
power to make rules for the qualification and admission of proper
persons to be advocates, vakils and attorneys at law and was to be
empowered to remove or suspend them from practice on reasonable
cause. The Letters Patents of other High Court contained
provisions. The Legal Practitioners Act 1879 appears to have been the
earliest Indian statute on the subject. Under s. 13 of this Act the High
Court was empowered after such enquiry as it though fit, to suspend
or dismiss any pleader or muktyar who was guilty of fraudulent or
grossly improper conduct in the discharge of his professional duty.
The Bar Councils came into existence for the first time under the Bar
Councils Act, 1926. But even under this Act the power to, reprimand,
suspend or remove from practice any advocate of the High Court
charged with professional or other misconduct was left with the High
Court under s. 10(1). S. 10(2) laid down the procedure to be adopted
by the High Court when a complaint was made to it by any Court or
by the Bar Council or by any other person that an advocate had been
guilty of misconduct. The High Court could summarily reject the
complaint or refer the case for enquiry to the Bar Council or after
consultation with the Bar Council refer it to the Court of a District
Judge and it also might. of its own motion refer any case where it had
reason to believe. that any advocate had been so guilty. Under s. 11 it
was the duty of a committee of the Bar Council to inquire into a
complaint made under s. 10, Under s. 12(2) of the Act the finding of a
Tribunal on an inquiry referred to the Bar Council was to be
forwarded to the High Court through the Bar Council and the finding
of a District Court on such inquiry was to be forwarded to the High
Court direct with a copy to the, Bar Council. S. 12(3) of the Act
contained a provision somewhat similar to s. 35(3) of the Act of 1961.
The hearing was however to take place before the High Court, which I
had to give notice of the date fixed for the purpose to the advocate
concerned, to the Bar Council and to the Advocate-General and to
afford them an opportunity of being heard before orders were passed
in the case. Under the Act of 1926 the Advocate-General appeared on
the scene only after the Bar Council had recorded its finding. The
significant departure in the Act of 1961 from the analogous provision
of the Act of 1926 is that the Advocate-General is given notice of
hearing of the case. By itself this cannot affect any change in his
position as regards an inquiry into the conduct of an advocate. It
would be reasonable to hold that while passing the statutes of 1926
and 1961 the Legislature thought that the Advocate-General should be
heard inasmuch as he occupied the position of a general referee on
points of professional etiquette very much like the Attorney-General
in England. However that may be, once he does the duty enjoined
upon him by the statute of making such submissions as he thinks
proper at the hearing his functions qua the inquiry come to an end. As
a referee he has no further interest in the matter. If the disciplinary
committee of, the Bar Council makes an order against the advocate
which the Advocate- General considers harsh and unreasonable in the
circumstances of the case, he is not called upon to file an appeal to
protect the interests of the advocate. Neither is he interested in
prosecuting the matter further if he takes the view that the punishment
meted is not commensurate with the misconduct of the advocate.

Elaborate reference was made at the Bar to the decision of the Privy
Council in Attorney-General of the Gambia v. Pierre Sarr N'Jie(1). In
that case the conduct of the respondent, a member of the English Bar
admitted to practice as a barrister and solicitor of the Supreme Court
of the Gambia was found to dishonourable and as such an order
striking his name off the roll of the court was made by the deputy
Judge with a direction that it should be reported to the Masters of the
Bench of the Inn to which he belonged. The Chief Justice of the
Supreme Court of the Gambia had criticised the conduct of the
barrister severely in the course of a trial held before him and had sent
a copy of his judgment to the Attomey-General of the Gambia. The
AttorneyGeneral served a notice of motion on the barrister for an
enquiry to be, made by the Chief Justice but as the Chief Justice was
the only Judge of that Court he recommended that some one other
than himself should be appointed as a deputy Judge to hold the (1)
[1961] A. C. 617, 630.

inquiry. The Deputy Judge ordered his name to, be struck off the roll.
His order was however set aside by the West African Court of Appeal
not on merits but on the ground that a Deputy Judge had only
jurisdiction to represent the Chief Justice in the exercise of his judicial
powers and according to the Court of Appeal the power to strike the
name of a legal practitioner off the roll was not a judicial power. The
Attorney-General of the Gambia appealed to Her Majesty in Council.
The question of the maintainability of the appeal-was also canvassed
before the Board. With regard to inquiries into the conduct of
barristers and solicitors in the Crown colonies Lord Denning who
delivered the judgment of the Privy Council, said "by the common,
law of England the Judges have the right to determine who shall be
admitted to practice as barristers and solicitors, and as incidental
thereto the judges have the right to suspend or prohibit from practice.
In England this power has for a very long time been delegated, so far
as barristers are concerned, to the Inns of Court; and, for a much
shorter time, so far as solicitors are concerned, to the Law Society. In
the colonies the Judges have retained the power in their own hands,
His Lordship went on to remark at p. 631 "When the judges exercise
this power to suspend or expel, they do not decide a suit between the
parties. There is no prosecutor as' in a criminal case, nor any plaintiff
as in a civil suit. The judges usually act on their own initiative, ex
mero motu, on information which has come to their notice, or to the
notice of one or other of them in the course of their duties."

Further, "When a legal practitioner is suspended or struck off by the

judges of a colony, he has always been at liberty to petition Her
Majesty in Council to restore him."

Rejecting the argument that the Attorney-General had, no locus standi

to petition for special leave to appeal as he was not a person
aggrieved, the Board referred to s. 31 of the Order in Council, 1949
which gave very wide powers to His Majesty in Council to entertain
the petition of any person aggrieved by any judgment of the court and
to admit his appeal upon such conditions as His Majesty in Council
would think fit to impose. On the facts of the case the Board held that
the Attorney-General had a sufficient interest in the matter because
the order made by the West African Court of Appeal prejudicially
affected his interests.

The reasoning of the Board was as follows:-

"The Attorney-General in a colony represents the Crown as the
guardian of the public interest. It is his duty to bring before the Judge
any misconduct of a barrister or solicitor which is of sufficient gravity
to warrant disciplinary action. True it is that if the judge acquits the
petitioner of misconduct, no appeal is open to the Attorney-
General. He has done his duty and is not aggrieved. But if the Judge
finds the practitioner guilty of professional misconduct and a Court of
Appeal reverses the decision on a ground which goes to the
jurisdiction of the judge, or is otherwise a point in w hich the public
interest is concerned, the Attorney- General is a person aggrieved' by
the decision and can properly petition Her Majesty for special leave to
appeal."

It is clear that Lord Denning considered the denial of jurisdiction of

the deputy Judge to be a matter of public interest and therefore held
the Attorney-General, as the Crown's representative, to be a person
sufficiently interested as to be a person aggrieved. That surely is not
the position here, nor is an Advocate-General the representative of the
Government. Neither the Constitution nor the Advocates Act 1961
holds him as the representative of the Government or as a person
representing the public interest. Whatever may be the, position of the
Attorney- General in a colony as a representative of the Crown, he is
not the guardian of the public interest in India in any matter except as
provided for in the statutes. He like any other person may draw the
attention of the Bar Council to any misconduct of an advocate which
according to him merits disciplinary action. The Act of 1961 provides
for notice to be given to him of all such proceedings and gives him a
right to appear at the hearing but once the hearing is over and a
finding recorded he has done his duty and cannot be said to be
aggrieved within the meaning of the expression used in s. 37. It is
only because the Attorney-General for the Gambia had an interest in
seeing that the Court of Appeal did not reverse the decision of the
Deputy Judge on a ground which went to the jurisdiction of the Judge
or was otherwise a point in which the public interest was concerned
that the Board held that he was a person aggrieved. Our attention was
drawn to a decision of the Judicial Com- mittee in Advocate-General
Bombay v. Phiroz Barucha(1) where the Privy Council entertained an
appeal by the Advocate- General (1) 37 B.L.R. 722.

of Bombay against an advocate who had been found by the High

Court of Bombay to have been guilty misconduct but against whom
no disciplinary action had been taken by the Judges. Although there
was a good deal of discussion Lit the Bar about the maintainability of
the appeal which was sought for by special leave, the Board remarked
that the circumstances were not such as to justify it in advising His
Majesty to grant such special leave principally on the ground that the
question was one of the exercise of statutory discretion by the Judges
as to whether the circumstances of the case as established before the
High Court called for any disciplinary action and the Board felt that
the action of the High Court in exercising their discretion in the way
they had done was not such as His Majesty would be advised further
to consider.

This decision does not help the Advocate-General of Maha- rashtra

because it did not decide the point as to the maintainability of the
appeal. It is well known that the Judicial Committee was never chary
in granting special leave to appeal when it felt that the justice of the
case demanded a further hearing.

Mr. Daphtary appearing for the appellant very fairly drew our
attention to an observation of this Court in Bhataraju Nageswara Rao
v. The Hon'ble Judges of the Madras High Court(1) which was a case
of an appeal by special leave from an order of the High Court at
Madras under s. 12 of the Indian Bar Councils Act debarring the
advocate for a period of five years on charges of misconduct which
were held by the High Court as proved. In the ultimate paragraph of
the judgment this Court recorded its strong disapproval of the frame
of the appeal in that the Judges of the High Court had been made
respondents to it. They however went on to observe that "in an appeal
arising out of a proceeding under the Bar Councils Act the appropriate
parties should be the advocate concerned, the complainant, if any, the
Bar Council or the secretary thereof and the Advocate-General of the
State concerned to whom notices have to be issued under section
12(3) of the Indian Bar Councils Act."
With great respect we find ourselves unable to concur in the above so
far as the Advocate-General is concerned. It does not appear that any
argument was advanced about the proper parties to the appeal before
this Court and the point as to whether the Advocate-General was a
person aggrieved was neither raised nor argued. The only party to
appear before this Court wag "the Judges of the High Court." (1)
[1955] 1.S.C.R. 1055,1064 It appears that the Advocate-General of
Maharashtra felt in this case that the disciplinary committee of the
Maharashtra Bar Council had gone wrong and that there was a
question of principle involved as regards the effect of a conviction of
an Indian advocate of an offence recognised by all civilised countries
as an offence involving moral turpitude and that, the question also
related to the requirements of natural justice in a criminal court. Every
day courts of law are called upon to decide questions of law inter-
partes which may be of general importance to the public. The
Advocate- General cannot prefer an appeal merely because the
question is one of considerable importance to the public inasmuch as
he is not a party to it and he has no locus standi to do so even in a case
where the statute only gives him an opportunity of appearing at a
hearing and making his submissions.

A decision by the disciplinary committee cannot necessarily be said to

raise a point-of public interest merely because the Advocate-General
feels that it is erroneous or that he himself would have arrived at a
different conclusion. That at best is his personal opinion as regards
the conduct of an advocate who has to deal with the public and the
non- acceptance thereof does not make him a person aggrieved. An
Advocate-General in India is not the guardian angel of the Bar, nor is
he the champion of public interest in any matter save as specified in a
statute.

In conclusion we hold that the appeal by the Advocate- General of

Maharashtra to the Bar Council of India was incompetent and this
appeal should be allowed and the finding of the Bar Council of India
set aside. Vaidialingam, J. With respect, I am not able to agree with
the views expressed by My Lord, and Mr. Justice Mitter That the
appeal filed by the Advocate-General of Maharashtra before the Bar
Council of India was incompetent. The preliminary point that has
been argued before us in this appeal relates to the maintainability of
the appeal by the Advocate-General of Maharashtra before the Bar
Council of India under S. 37(1) of the Advocates Act 1961-Act 25 of
1961 (hereinafter referred to as the Act) against the order of the
Disciplinary Committee of the Bar Council of Maharashtra
(hereinafter referred as the Committee) dated October 19, 1968
holding the appellant not guilty of any professional misconduct. It is
not necessary to refer to the allegations of professional misconduct
made against the appellant as this appeal has yet to be heard on
merits. Against the order of the Committee, acquitting the appellant,
the Advocate-General of Maharashtra Sri H. N. Seervai, filed under s.
37(1)D.C.Appeal No. 18 of 1968 before the Bar Council of India. The
said appeal was heard by the Disciplinary Committee of the Bar
Council of India (hereinafter referred to as the. Appellate Committee)
as required by s. 37(2) of the Act. A preliminary objection was raised
on behalf of the appellant that the Advocate- General was not
competent to prefer the appeal as he was not the complainant nor were
the proceedings for taking disciplinary action initiated at his instance
and he is not "any person aggrieved' under s. 37(1). The State Bar
Council, which initiated the proceedings was apparently satisfied with
the decision of its Committee and did not take any further action. In,
short,. according to the appellant, the Advocate-General was not "any
person aggrieved", under s. 37(1) of the Act. The appeal was, also
contested by the appellant on merits. The Appellate Com- mittee by
its order dated October 26, 1969 overruled the preliminary objection
and held that the Advocate-General was competent to maintain the
appeal under s. 37(1). By the same order the Appellate Committee
disagreed with the findings of the Committee and found the appellant
guilty of professional misconduct and ordered his suspension from
practice for a period of one year. The appellant was also directed to
pay the costs of the proceedings. It is this order of the Appellate
Committee that is the subject of the appeal before us.

As stated earlier, we have heard arguments only on the question of the

maintainability of the appeal at the instance of the Advocate-General
of Maharashtra before the Bar Council of India. As the question
raised was a fairly important one, notice had been issued to the
Attorney- General of India, the Bar Council of India, the Advocates-
General and the Bar-Councils of the States. Advocates- General of
most of the States were represented by counsel. The Attorney-General
of India, the Bar Council of India as well as. the Bar Council of
Maharashtra were also represented by counsel before us.

The question posed for our consideration is whether the, Advocate-

General of a State comes within the expression "any person
aggrieved" in s. 37(1) of the Act.

Mr. Daphtary, learned counsel for the appellant, drew our attention to
the various provisions of the Act and pointed out that matters
concerning the legal profession have now been entrusted to the State
Bar Councils and the Bar Council of India and them powers to take
disciplinary action have also been vested in them. Whatever may have
been the position once occupied by the. Advocate-General vis-a-vis
the legal profession, that has now been changed by the Act. His
appearance in disciplinary matters is only to assist the Committee and
he has no further interest in those proceedings. Whether an Advocate
is acquitted or convicted is no concern of the Advocate-General,
because he is not interested in the actual decision of the Committee.
Hence the Advocate-General cannot be considered to be "any person
aggrieved by any order of the Committee so as to be eligible to file an
appeal under s. 37 of the Act. In this connection Mr. Daphtary
referred us to several English decisions where the expression person
aggrieved' has been considered and interpreted with references to the
statutes in which those expressions occur. Relying on the principles
laid down in those decisions, to which reference will be made later,
Mr. Daphtary pointed out that the expression perso n aggrieved'
should not be interpreted as covering every person who is
disappointed or dissatisfied with a decision rendered by a Committee.
On the other hand, the counsel urged, that in order to be considered as
a person aggrieved' that person must be one who has suffered a legal
grievance, a man against whom a decision has been pronounced and
which has wrongfully deprived him of something or wrongfully
refused him something, or wrongfully affected his title to something.
An appeal must be by the party who has endeavored to maintain the
contrary of that which has taken place. The counsel further pointed
out that the Advocate- General is a public officer and cannot be
considered to be a party to the proceedings before the Committee. The
Advocate-General may be even annoyed with the decision of the
Committee acquitting an Advocate, but that will not make him a
person aggrieved'.

Considerable reliance was placed by Mr. Daphtary on the

observations of Lord Denning in Attorney-General of the Gambia v.
Pierre Sarr N'Jie(1) to the effect that the Attorney-General in a colony
represents the Crown as the guardian of the public interest and that it
is his duty to bring before the Judge any misconduct of a barrister or
solicitor which is of sufficient gravity to warrant disciplinary action
and that if the Judge acquits the practitioner of misconduct, no appeal
is open to the Attorney-General, who has done his duty and is not
aggrieved. But if, on the other hand, a Court of Appeal reverses the
decision holding a practitioner guilty of professional misconduct, on a
ground which goes to the jurisdiction of the Judge or is otherwise a
point in which the public interest is concerned, the Attorney-General
is a perso n aggrieved' by the decision and can properly petition Her
Majesty for special leave to appeal. Drawing support from these
observations Mr. Daphtary urged that in this case, the Committee had
acquitted the appellant and the Advocate-General having appeared
through counsel before the Committee has done his duty, and as such
he cannot be considered to be aggrieved. No question of jurisdiction
of the Committee or any point in which the public interest is (1)
[1961] Appeal Cases 617.

concerned arose for decision in the appeal filed by the Advocate-

General, so as to make the appeal competent even within the limited
rule laid down by Lord Denning. Mr. V. S. Desai, learned counsel
appearing for the Advocate- General of Maharashtra and Mr. M. C.
Setalvad, learned counsel appearing for the Bar Council of India have
supported the decision of the Appellate Committee holding in favour
of the competency of the appeal filed by the Advocate-General as
"any person aggrieved" under s. 37 of the Act. The counsel appearing
for the Attorney-General, the Bar Council of Maharashtra and the
Advocates-General represented before us have supported this view.
Mr. V. S. Desai pointed out that the Act is a self-contained Code, and
that the various decisions where the expression perso n aggrieved' has
been interpreted must be appreciated in the particular context in which
those expressions occur in the statutes which were before the Courts.
The reasoning in those decisions may furnish a guide but cannot be
applied ipso facto when interpreting s. 37 of the Act. The expression "
any person aggrieved" in s. 37 of the Act will have to be understood
and interpreted in the context in which it appears, having due regard-
to the scheme of the Act. The counsel also referred us to certain
decisions bearing on this matter, to which we shall refer in due
course.

Mr. M. C. Setalvad, learned counsel, appearing for the Bar Council of

India urged in particular that the Advocate- General is a responsible
person and is the highest Law Officer of the State. The legal
profession is very closely associated with the administration of justice
by the Courts. The Bar, in that context has to come into contact with
the public to assist them in legal matters. This responsible position
occupied by the legal profession has to be properly safeguarded and
that could be done only by insisting that its members are persons of
high character and integrity and who observe rules of professional
etiquette. The Act has made it obligatory to give notice in the
disciplinary proceedings to the Advocate-General and give him an
opportunity of being heard. The purpose for which the highest Law
Officer of the State, the Advocate-General, is brought in not only in
the Act, but also in the Indian Bar Councils Act of 1926 (Act 38 of
1926) (hereinafter referred to as the Bar Councils Act) is to subserve
the public interest, namely, of seeing that the integrity and honesty of
the legal profession are maintained and that proper decisions are given
in disciplinary proceedings. There may be cases of inadequate
punishment or even harsh punishment being awarded by the
Committee. The Advocate-General in proper cases can bring up such
matters before the Bar Council of India. Mr. Setalvad further pointed
out that there is no restriction placed in s. 37 denying the right of the
Advocate-General to file an appeal against the orders of the
Committee. Having due regard to the scheme of the Act and
particularly of ss. 35 and 37, the Advocate-General comes within "any
person aggrieved" and hence he was competent to file the appeal.
I have given careful consideration to the various aspects placed before
us by all the learned counsel and I am of the view that the decision of
the Appellate' Committee holding that the appeal filed by the
Advocate-General of Maharashtra was competent is correct. I am
further of the view that the expression "any person aggrieved" in s.
37 will have to be interpreted in the context in which it appears,
having due regard to the provisions of the Act and its scheme.
Considered in this manner, it has to be held that the Advocate-General
comes within "any person aggrieved" in s.

37. The decisions relied on by Mr. Daphtary have, no doubt,

interpreted the expression person aggrieved' occurring in the
particular statutes which came up for consideration in those decisions,
but in my opinion it will not be safe to adopt in toto the interpretation
so placed, no doubt on the identical expression occurring in different
statutes when construing the said expression in the Act before us. As
pointed out by Lord Parker C.J. in Ealing Corporation v. Jones(1)
cases which have interpreted similar expressions, can be looked into
"to see if there are general principles which can be extracted which
will guide the court in approaching the question as to what the words
person aggrieved' mean in any particular statute." I will make a brief
reference to the decisions cited for the appellant later. But before
doing so, it is desirable to refer to some of the provisions of the Act
itself, so that the scheme of the Act will become evident, and that will
throw considerable on the interpretation of s. 37. Before I refer to the
Act, I think it desirable to advert to some of the provisions of the Bar
Councils Act. Even at the outset I may point out that the scheme of
the Bar Councils Act was different. In the Bar Councils Act, the
disciplinary jurisdiction over Advocates was vested in the High Court
[vide s. 10(1)]. Under s. 10 (2) the High Court,. if the complaint is not
summarily rejected by it, had to refer the case for inquiry either to the
Bar Council or after consultation with the Bar Council, to the Court of
a District Judge. When a case is referred for inquiry to the Bar
Council under s. 1 1, the case was to be inquired into by the
Committee of the Bar Council, referred to as the Tribunal, and that
Tribunal consisted of the particular number of person mentioned in s.
II (2) appointed for the purpose by the Chief Justice. The High Court
had power to make rules under s. 12(1) prescribing the procedure, to
be followed in the conduct of inquiries. The finding of the inquiry by
the Tribunal had to be forwarded to the High Court. On receipt of the
finding, the High Court had to fix (1) [1959] 1 Q.B.D. 384.

a date for hearing of the case. Under S. 12(3) it was obligatory to give
notice, amongst other persons, to the Advocate-General of the day
fixed for hearing; and it was also further obligatory to give the
Advocate-General an opportunity of being heard before orders. were
passed. Under s. 12(4) the High Court could pass final orders or refer
the case back for further inquiry., Under sub-s. (5) the High Court had
also power, when passing final orders to give directions regarding
payment of costs. I am only referring to the material provisions of
the Bar Councils Act to show that the High Court was then the
disciplinary authority and the function of the Committee of the Bar
Council was only to submit a finding after conducting an inquiry as
directed by the High Court. It is however to be noted that the
Advocate-General then was not associated in the inquiry proceedings
before the Tribunal of the Bar Council; but he-was entitled to be
given notice of the date fixed for hearing and also to be heard in the
proceedings before the High Court after receipt of the finding
submitted by the Committee of the Bar Council. Those provisions
clearly establish the important position occupied by the Advocate-
General and recognised by the Bar Councils Act. The scheme is
slightly different when we come to the Act. The State Bar Councils
and the Bar Council of India have been made autonomous units and
various functions regarding the legal profession have been entrusted
to them. Taking disciplinary action against the delinquent members of
the Bar and conducting inquiries are all part of their functions.
Barring a provision of a right to appeal to the Supreme Court under s.
38 of the Act, the Courts are completely out of picture so far as the
legal profession is concerned. The Act was one to amend and
consolidate the law relating to legal practitioners and to provide for
the constitution of the Bar Councils of the States and the Bar Council
of India. Section 3 makes provisions for the State Bar Councils.
Under sub-section (2) the Advocate-General of the State is an ex-
officio member. Similarly the Additional Solicitor General of India is
an ex-officio member of the State Bar Council of Delhi. Section 6 (1 )
enumerates the functions of the State Bar Councils. One of the
functions under cl. (c) relates to entertaining and determining cases of
misconduct against advocates on the roll of the State Bar
Council. Section 7 similarly enumerates the functions of the Bar
Council of India. Under cl. (c), the Bar Council of India has got the
power to lay down the procedure to be followed by its Disciplinary
Committee and the Disciplinary Committees of each State Bar
Councils. Section 9 deals with the Bar Council constituting one or
more Disciplinary Committees in the manner indicated
therein. Section 23 gives a right of pre-audience to the Attorney-
General of India, the Solicitor General of India, the Additional-

Solicitor General of India and the Advocate-Generals of the States, as

mentioned in sub-sections 1 to 4 respectively. Chapter V deals with
the "conduct of Advocates" and contains the group of sections
35 to 44. Section 35 deals with the punishment of Advocates for
misconduct and is as follows "Section 35 : Punishment of advocates
for mis- conduct:

(1) Where on receipt of a complaint or otherwise a State, Bar Council

has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to
its dis- ciplinary committee.

(2) The disciplinary committee of a State Bar Council, if it does not

summarily reject the complaint,shall fix a date for the hearing of the
case and shall cause a notice thereof to be given to the advocate
concerned and to the Advocate-General of the State. (3) 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.

(4) Where an advocate is suspended from practice under clause (c) of

sub-section (3), he shall, during the period of suspension, be debarred
from practicing, in any court or before any authority or person in
India.

(5) Where any notice is issued to the Advocate-General under sub-

section (2), the Advocate-General may appear before the disciplinary
committee of the State Bar Council either in person or through any
advo- cate appearing on his behalf."

Similarly s. 36(1) deals with the disciplinary powers of the Bar

Council of India. Sub-section (2) confers powers on the Appellate
Committee of its- own motion to withdraw for inquiry for itself any
disciplinary action against an advocate pending before the Committee
and dispose of the same. Sub-section (3) provides for the Appellate
Committee when disposing of a case under s. 36 observing, so far as
may be, the procedure laid down in s. 35. It further provides that
references to the Advocate-General in s. 35 are to be construed as
references to the Attorney-General of India.

Sections 37 and 38 which provide for an appeal to the Bar, Council of

India and to the Supreme Court effectively run as follows 'Section
37 : Appeal to the Bar Council of India.

(1) Any person aggrieved by a order of the, disciplinary committee of

a State Bar Council(under section 35) may, within sixty days of 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, thereon as it
deems fit.,, "Section 38. Appeal to the Supreme Court: Any person
aggrieved by an order made by the disciplinary committee of the Bar
Council of India under section 36 or section 37 may, within sixty days
of the date on which the order is communicated to him, prefer an
appeal to the Supreme Court and the Supreme Court may pass such
order thereon as it deems fit."
Section 42(1) deals with powers of the disciplinary committee of a
Bar Council with regard to the various matters provided for in cls. (a)
to (f). Section 43 provides for making of orders as to costs by the
disciplinary committee of a Bar Council. Section 44 gives powers of
review to the disciplinary committee of a Bar Council. Section 48A,
in Chapter- VI, deals with the revisional. powers of the Bar Council
of India. It will be, seen from ss. 3 (2) (a), 23 (4) and 35 that the,
Advocate-General of the State is given by the Act a very important
and responsible position. Some discussion took place before us
whether the Advocate-General can be considered to be the person
who is charged with the duty of safeguarding the professional
integrity of the members of the Bar, when powers and duties in that
regard have been- conferred under the Act on the-

State Bar Councils. I do not think it necessary to go into that aspect as

I think a# inquiry in that regard is not relevant for the present purpose
of construing S. 37. Nor can the analogy of the Attorney-General in a
colony representing the Crown, being the guardian of public interest,
as stated by Lord Denning in Attorney-General of the Gambia v.
Pierree Sarr N'Jie(1) be brought in for interpreting S. 37 of the Act, as
we are only concerned to find out the right given to the Advocate-
General by the Act. So far as that is concerned, I am satisfied that the
Act has given due recognition to his status by virtue of his being the
highest Law in the St-ate, as the Advocate-General and who may be
trusted to place a disinterested and dispassionate view before the
Committee to enable it to come to a proper decision having due
regard to the Advocate concerned, as well as the entire legal
profession to which he belongs. Apart from his being under s'. 3 (2)
(a) an ex- officio member of the State Bar Council, s. 23 (4) gives him
a right of pre-audience over all other advocates. Coming to s. 35, read
with S. 37, which has been extracted earlier, the main features that
emerge therefrom are as follows (1), The State Bar Council can suo
moto or on receipt of a complaint, when it has reason to believe that
an advocate has been guilty of professional or other misconduct refer
the case to its committee.

(2) If the Committee does not summarily reject the complaint, it is

bound to fix a date for hearing of the case, and it is also further bound
to give notice of the date of hearing, apart from the advocate
concerned, to the Advocate-General of the State.

(3) The Committee is bound in, the inquiry to give an opportunity of

being heard both to- the advocate concerned and the Advocate-
General. After such an inquiry the Committee can pass one or other of
the orders enumerated in clauses (a) to

(d) of s. 35.

(4) The Advocate-General may appear before the Committee in

person or through an advocate appearing on his behalf.

(5) The orders of the Committee have to be communicated to the

Advocate-General and the advocate concerned.

(1) [1961] 1 A. C. 617.

(6) Against the orders passed under s. 35, any person aggrieved is
entitled to file an appeal under s. 37, to the Bar Council of India.

While under the Bar Councils Act, the Advocate-General was

associated with the disciplinary proceedings only when the matter was
being decided by the High Court, after receipt of the findings
submitted by the Tribunal of the Bar Council, it is significant to note
that under the Act, the Advocate- General is associated with the
disciplinary proceedings right from the stage of inquiry by the
Committee. Under sub-section (2) of s. 35 the Committee is bound to
give notice of the date of hearing not only to the Advocate concerned
but also to the Advocate-General of the State. It will be noted that
disciplinary proceedings may have been occasioned because of a
complaint made by a third party or may have been initiated suo Moto
by the State Bar Council. In whatever manner the proceedings may
have been initiated, the Advocate-General is entitled to be given
notice of the date of hearing. It cannot be a formal and empty notice,
to the Advocate-General, because sub-section (3) clearly indicates
that the Advocate-General should be given an opportunity of being
heard. It is significant to note that sub-section (3) of s. 35 which, deals
with the giving of am opportunity of being heard both to the advocate
concerned and the Advocate-General does not make any distinction in
the opportunity so afforded to both of them. The same opportunity
that the Advocate concerned has under sub-s. (3) is also afforded to
the Advocate-General. It is not necessary to go to the extent of
holding that there is a "lis" before the Committee and that the
Advocate-General is a "party" in the sense that expression is
ordinarily understood in law. The advocate concerned win be
interested in disputing the allegations made or charges levelled
against him and he will be entitled to lead evidence in support of his
plea. If there is a complainant, he will of course lead evidence to
support his case. The Advocate- General, on the other hand, is also
entitled to place before the Committee all aspects of the matter
including facts that may be in favour of the advocate whose conduct
is under inquiry. This is because of the important position occupied
by him. It may be that the Advocate-General may not be able to
appear personally and participate in all the disciplinary proceedings
and that is why provision has been made in s. 35(5) enabling the
Advocate-General to appear either in person or through any advocate
appearing on his behalf. Just as the Advocate concerned will have an
opportunity of examining his witnesses and cross-examining the
witnesses produced against him, the Advocate-General or the counsel
appearing on his behalf will also have a right of cross- examining the
witnesses produced in the case so as to elicit information about the
charge of professional misconduct levelled against the advocate
concerned. The 9 SupCI/71-14 Advocate General need not be
vindictive and take sides as a party to a litigation and see that the
advocate is found guilty. On the other hand, by virtue of the special
and dispassionate role occupied by him, he will be able during the
inquiry to place such materials or evidence which will enable the
Committee to come to a proper and correct finding, in the interest of
both the legal practitioner and legal profession to which he belongs.

It is in this context of the close association of the Advocate-General

with the disciplinary proceedings that the expression person
aggrieved' in S. 37 has to be interpreted. There can be no
controversy-. that an appeal will lie against the various orders that the
Committee may pass as enumerated in cls. (a) to (d) of S. 35 (3). The
question is at whose instance the appeal will lie. If the complaint is
dismissed, the complainant will be a person aggrieved' who can file
an appeal under S. 37. In fact it has been held by this Court in B. M.
Madani v. Commissioner of Workmen's Compensation, Bombay(1)
that when proceedings are initiated on a complaint by a party and the
Committee after finding the advocate guilty of the charges, passed an
order reprimanding with a warning, an appeal filed by such a
complainant before the Appellate Committee only on the question of
sentence imposed, was-competent as, the complainant was a person
aggrieved'. Similarly, an order adverse to the advocate concerned, can
be the subject of appeal at his instance.

There is no controversy that the order passed by the Com- mittee was
communicated to the Advocate-General. As already pointed out a
series of steps is contemplated under S. 35; reference to the
Committee, of a case of professional misconduct; notice of the, date
of hearing to be given to the Advocate-General; Advocate-General
being given an opportunity of being heard at the hearing; the
Advocate- General being entitled to appear before the Committee
either in person or through an Advocate; his being entitled to be
communicated with a copy of the order passed by the Com- mittee. It
is in that context and for these purposes that I have considered the
meaning of the expression "any person aggrieved" in S., 37-(1). The
fact that the Advocate- General does not allege an infringement of any
legal rights of his own is of no consequence. The particular-
preceding in which the Advocate-General is given a right to
participate relates to an inquiry into the allegations of misconduct
against an advocate. Upon a fair construction of S. 37 read with S.
35 of the Act, the Advocate-General, in my opinion is "any person
aggrieved" and as such was entitled to file the appeal under S. 37 (1 )
against the order passed by the Committee. The same reasoning will
apply to the Attorney-General of India under S. 38. (1) (Civil Appeal
No. 877 of 1968 decided on 8-10-1968).

It may be that in a particular case the Advocate-General may feel that

the findings arrived at in favour of the advocate by the Committee is
not justified by the evidence and that decision will have to be
reconsidered by the Appellate Committee; or it may even be that in a
particular case the sentence imposed by the Committee may not be
commensurate with the guilt of the advocate; or it may also be that the
sentence imposed on an, advocate by the Committee is very harsh or
the finding of guilt is not correct. Under such and similar
circumstances in the interests of the Advocate and the legal
profession, the Advocate-General will be competent to bring up the
matter before the Appellate Committee so that justice may be done.

In this context the observations of Lord Hewart C.J. in Sevenoaks

Urban District Council v. Twynam(1) are apposite. The question
before the Court in that decision was whether an objector to a
proposal made by a local authority to acquire land in order to provide
parking place for vehicles and whose objections were overruled was a
person aggrieved' under s. 68(3) of the Public Health Act 1925 and as
such entitled to appeal. It was found that the objector alleged no
ground of objections personally to himself. Nevertheless it was held
that such an objector was a person aggrieved' and entitled to appeal.
Lord Hewart C.J. at page 443 states :

"The question therefore is : Is it true to say that in these circumstances

and within the meaning of (this part of this statute this respondent was
a person.... aggrieved' ? Now undoubtedly those words, a person
aggrieved', have very often been considered, and, if one looked at the
mere terms apart from their context and apart from the particular
circumstances, it would have been, quite easy to marshal decisions of
contradictory import. But as has been said again and again there is
often little utility in seeking to interpret particular expressions in one
statute by reference to decisions given upon similar expressions in
different statutes which have been enacted alio intuitu. The problem
with which we are concerned is not, what is the meaning of the
expression aggrieved' in any one of a dozen other statutes, but what is
its meaning in this part of this statute ? It is a little important to see
what this part of this statute is dealing with."

The above extract has been quoted with approval by Lord Parker C.J.
in Ealing Corporation v. Jones('). I have already indicated earlier that
the problem before us whether the Advocate-General is a person
aggrieved' under s. 37 (1) [1929] 2 K. B. 440.
(2) [1959] 1. Q. D. 384.

of the Act will have to be tackled with reference to the scheme and
provisions of the Act and that is exactly what I have done and arrived
at the conclusion that he is a person aggrieved.

Mr. Daphtary argued that when the Committee consisting of members

of the legal profession, has decided in favour of the Advocate, the
Advocate-General can have no grievance. This,in my view is really
begging the question. Why did the Legislature then bring in the
Advocate-General at all and why has it associated him- in disciplinary
proceedings from the very beginning of the inquiry ? That and other
circumstances, already pointed out by me, bring him under s. 37 as
"any person aggrieved."

Mr. Daphtary then urged that if the Advocate-General was expected

to safeguard the interest of the Advocate and the legal profession by
seeing that proper decisions are given by the Committee, that purpose
is not served when powers have been given to the Committee under s.
35(2) to summarily reject a complaint and the Advocate-General will
have no remedy against such rejection. The short answer to this
contention is that a right of appeal must be specifically conferred by
statute. Section 37(1) gives a right of appeal against an order passed
under s. 35. The orders which could be passed after hearing the case
are enumerated in clauses

(a) to (d) of S. 35 (3). It is not necessary for me to express any

opinion whether an order summarily rejecting a complaint can also be
the subject of an appeal under S. 37(1) as that section is in very wide
terms. In any event, Mr. Daphtary's contention will only amount to
this viz., that the Advocate-General is not associated at the stage of
summary rejection of a complaint. That circumstance does not
militate against the view already expressed by me. Probably the
Legislature may have felt that if there is any wrongful summary
rejection of a complaint it could be set right by the Bar Council of
India under S. 48A. But once the Committee decides to hear the cases
and passes an order under s. 35, the Advocate-General gets a right of
appeal under S. 37(1).
Mr. V. S. Desai referred us to the decision of the Judicial Committee
in Advocate General of Bombay and others v. Pitamberdas Gokuldas
Mehta and others(1) wherein, according to him, an appeal by the
Advocate-General of Bombay against the decision of the High Court
of Bombay Pleaders Act was entertained by the Judicial Committee.
He has also referred us to the discussion between the Court and
counsel in the said decision reported in Advocate-General of Bombay
v. Phiroz Rustomji Bharucha(2) which, according to him, will show
that though an objection about the locus standi of the Advocate-
General to file an (2) 37 Bombay Law Reporter 722.

(1) Indian Appeals 235.

appeal under such circumstances was raised, but was not accepted by
the Judicial Committee. I have gone through both the reports and
there is no indication that the question of maintainability of an appeal
by the Advocate- General was decided one way or the other by the
Judicial Committee.

Mr. Daphtary has referred us to the decisions in Re. Side- botham(1),

in re. Reed, Bowen & Co.,(2), The Queen v. The Keepers of the Peace
and Justices of the County of London(3), Rex. v. London Quarter
Sessions(4) and Ealing Corporation v. Jones(5), wherein the
expression person aggrieved' occurring in different statutes came up
for interpretation. The principles that emerge from those decisions
appear to be that a person aggrieved' must be a person who has
suffered a legal grievance or who has claimed a title to something and
his claim has been negatived or who has maintained to the contrary in
the proceedings or litigation. It has been further held in some of those
decisions that the said expression does not take in any person who
may be affected by the order or who may feel disappointed or even
annoyed at the decision. In the view that I take that the expression
person aggrieved' in s. 37 of the Act has to be interpreted in the light
of the provisions of and scheme of the Act as well as the context in
which those expressions appear. I do not think it necessary to consider
in great detail those decisions which have been rendered on different
statutes. The decision in The Municipal Corporation of the City of
Ahmedabad v. Chandulat Shamaldas Patel and others(6) referred to
by Mr. Daphtary, in my opinion, does not assist the appellant. In that
decision it was held that when certain notifications issued under
the Land Acquisition Act were set aside by the High Court, the
Municipal Corporation, on whose behalf the ;acquisition was being
made by the Government, cannot be considerd to be a person
aggrieved' entitled to challenge the order of the High Court. An
additional reason has also been given against the competency of the
appeal that even an order for costs has not been passed against the
Municipal Corporation. That decision was rendered on the scheme of
the Land Acquisition Act, and so does not help the appellant.

It was urged on behalf of the appellant that if the Advocate-General

was really intended to be given a right of appeal under s. 37 (1), the
Legislature should have used the expression any person including the
Advocate-General aggrieved by an order.

(1) 14 Chancery Davison 458.

(3) 25 Q. B. D. 357.

(5) [1959] I. Q. D. 384.

(2) 19 Q. B. 174.

(4) [1951] 2 K. B. D. 508.

(6) (Civil Appeal No. 1716 of 1967 decided on 1-8-1970) I am of the

view that it was unnecessary to make any such provision because the
expression as it stands clearly takes within its fold the Advocate-
General also. This leaves me with the decision in Attorney-General of
the Gambia v. Pierre Sarr N.'Jie(1) which has been very strongly
relied on by Mr. Daphtary. One Mr. X a member of the, English Bar
was admitted to practice as a barrister and solicitor of the Supreme
Court of Gambia. The Deputy Judge made an order striking his name
off the roll of that Court. This decision was reversed by the West
African Court of Appeal on the ground that the Deputy Judge had no
jurisdiction in the matter. The Attorney-General of Gambia sought
leave to appeal to Her Majesty in Council; but the West African Court
of Appeal declined to grant him leave on the ground that notice had
not been given in due time to Mr. X. The Attorney-General then made
a petition to Her Majesty for special leave to appeal from the
judgment of the West African Court of Appeal, setting aside the order
of the Deputy Judge as well as refusing to grant leave to appeal. The
Attorney-General's petition was granted; but liberty was reserved to
Mr. X to raise the preliminary point that no appeal lay at the instance
of the Attorney-General. During the course of arguments the Judicial
Committee rejected the preliminary objection.

It is to be noticed that against the decision of the Deputy Judge

striking his name off the roll, Mr. X filed an appeal to the West
African Court of Appeal under s. 14 which was as follows "An appeal
shall lie to the Court of Appeal from any order of the Judge
suspending a barrister or solicitor of the Supreme Court from practice
or striking his name off the Roll and for the purposes of any such
appeal any such order shall be deemed to be an order of the Supreme
Court."

I am particularly referring to this decision because certain

observations of Lord Denning on which reliance has been placed by
Mr. Daphtary will have to be understood with reference to this
provision of law. Exercising jurisdiction under this section, the West
African Court of Appeal set aside the order of the Deputy Judge. In
the first instance the Attorney-General sought leave to appeal to Her
Majesty in Council from the West African Court of Appeal under s. 5
of the West African (Appeal to the Privy Council) Order in Council.
1949, which is as follows "Applications to the, court for leave to
appeal shall be made by motion or petition within 21 days from the
date of the judgment to be appealed from, and the (1) [1961] A. C.
617.

applicant shall give the opposite party notice of his intended

application."

The West African Court of Appeal declined to grant leave to appeal to

the Attorney-General on the ground that notice-had not given within
the time mentioned in the above order to Mr. X. The Attorney-
General made an application to the Judicial Committee for special
leave to appeal from the two orders mentioned above of the West
African Court of Appeal. That petition was filed under s. 31 of the
West African (Appeal to Privy Council) Order in Council, 1949,
which runs as follows "Nothing in this order contained shall be
deemed to interfere with the right of His Majesty upon the humble
petition of any person aggri eved by any judgment of the Court to
admit his appeal therefrom upon such condi- tions as His Majesty in
Council shall think fit to impose."

The question that arose before their Lordships was whether the
Attorney-General was a person aggrieved' under the above order.

In discussing this question Lord Denning at page 634 observes :

"....... The words person aggrieved' are of wide import and should not
be subjected to a restrictive inter pretation. They do not include, of
course a mere busy body who is interfering in things which do not
concern him: but they do include a person who has a genuine
grievance because an order has been made which prejudicially affects
his interests. Has the Attomey-General a sufficient interest for this
purpose? Their lordships think that he has. The Attorney- General in a
colony represents the Crown as the guardian of the public interest. It
is his duty to bring before' the judge any misconduct of a barrister or
solicitor which is of sufficient gravity to warrant discriplinary action.
True it is that if the judge acquits the practitioner of misconduct, no
appeal is open to the AttorneyGeneral. He has done his duty and is
not aggrieved. But if the judge finds the practitioner guilty of
professional misconduct, and a Court of Appeal reverses the decision
on a ground which goes to the jurisdiction of the judge, or is
otherwise a point in which the public interest is concerned, the
Attorney-General is a person aggrieved' by the decision and can
properly petition Her Majesty for special leave to appeal. It was for
these reasons that their Lordships rejected the preliminary objection
and held that the Attorney-General was a person aggrieved' by the
decision of the West African Court of Appeal."

The observations made in the above extract, in my opinion, have to be

related to the particular provision of the order in Council which the
Judicial Committee was considering. In the case before the Judicial
Committee, the Attorney-General had initiated the disciplinary
proceedings against the Barrister. Under S. 14, there was only a very
limited right of appeal and that too in favour of the barrister or
solicitor in respect of the orders mentioned therein. The Attorney-
General, though he may have been the complainant under S. 14 had
no right of appeal if the barrister was acquitted. That is why Lord
Denning states that it is true that if the Judge acquits the practitioner
of misconduct no appeal is open to the Attorney-General. This view,
with respect, is correct because S. 14 does not give a right of appeal to
the Attorney-General. Lord Denning, no doubt, has further stated that
the Judicial Committee has rejected the preliminary objection in view
of the fact that it was of the opinion that in the case before it a
question of jurisdiction or a point of public interest is involved and
therefore, the Attorney-General is a person aggrieved. I have already
indicated that-there are no restrictions or limitations imposed in S.
37 of the Act giving a right of appea l only to the advocate who may
have been found guilty. On the other hand, the words "any person
aggrieved" in S. 37 are very wide, and as observed by Lord Denning
in the opening part of the above extract these words should not be
subjected to a restrictive interpretation. In the view that I take that the
Advocate-General has an unqualified right of appeal under s. 37(1) I
do not think it necessary either to refer to Art. 165 of the Constitution
nor do I think it necessary to consider the further question whether the
appeal filed by the Advocate-General before the Bar Council of India
relates to any question of jurisdiction or a point of public interest.

To conclude, the appeal filed by the Advocate-General of

Maharashtra before the Appellate Committee was competent and this
point has to be held against the Appellant. The result will be that the
appeal before us will have to be heard on merits.

RAY, J. I agree with Vaidialingam, J. I desire to express my separate

opinion in view of the importance of the question raised in this
appeal.
This is an appeal from the order dated 26 October, 1969 of the
Disciplinary Committee of the Bar Council of India suspending the
appellant from practice for a period of one year.

An appeal to the Disciplinary Committee of the Bar Council of India

was preferred by Shri H. M. Seervai, Advocate General of
Maharashtra against the order dated 17 October, 1968 of the Bar
Council of Maharashtra holding that the appellant was not guilty of
professional misconduct or otherwise.

Before the Disciplinary Committee of the Bar Council of India a

preliminary objection was taken by AdiPheroz Shah Gandhi as to the
maintainability of the appeal preferred by the Advocate General of
Maharashtra.

The appellant pressed the same preliminary objection in this Court,

namely, that the Advocate General of the State of Maharashtra could
not prefer an appeal against an order of the Disciplinary Committee of
the State Bar Council. The relevant provision for appeal to the Bar
Council of India is to be found in section 37 of the Advocates Act,
1961 (hereinafter referred to as the Act). There are two sub-sections
of section 37. The first sub-section enacts that any person, aggrieved
by an order of the Disciplinary Committee of the State Bar Council
made under section 35 may, within sixty days of the date of the
communication of the order to him, prefer an appeal to the Bar
Council of India. Sub-section (2) of section 37 states that every such
appeal shall be heard by the Disciplinary Committee of the Bar
Council of India.

The present appeal is under section 38 of the Act which con- fers right
of appeal to the Supreme Court by any person aggrieved by an order
made by the Disciplinary Committee of the Bar Council of India.

The entire controversy in this appeal centers on the meaning of the

words any person aggrieved by an order of the Disciplinary
Committee of the State Bar Council' occurring in sub-section (1)
of section 37 of the Act. The same words also occur in section 38 of
the Act.
Mr. Daphtary on behalf of the appellant contended first that the
Advocate General did not represent public interest and could not
therefore be said to be a person aggrieved by an order of the
Disciplinary Committee. Secondly, that the provisions in section 35 of
the Act that the Advocate General was entitled to a notice from the
Disciplinary Committee of the date of hearing and the provision that
the Advocate General was entitled to be heard by the Disciplinary
Committee could not have the effect of making the Advocate General
a party, and, thirdly, the Advocate General was an impartial person
and his duty would end by making submissions, if any, before the
Disciplinary Committee and he would not be a person aggrieved
either by an order of dismissal of a complaint against the Advocate or
by any order passed against the Advocate.

Notices were given to the Attorney General and the Advocates

General of different States in view of the importance of the question
involved in this appeal. Mr. V. S. Desai on behalf of the Advocate
General of Maharashtra, Mr. Setalvad on behalf of the Bar Council of
India, Dr. Seyied Muhammad on behalf of the Attorney General, Mr.
Datar counsel for the Maharashtra State Bar Council of India, Dr.
Seyied Muhammad on behalf of the of other States all contended that
the Advocate General would have the right under the Act to prefer an
appeal as a person aggrieved by an order of the Disciplinary
Committee of a State Bar Council. Various decisions were cited at the
Bar to illustrate the meaning of the words person aggrieved'. One
group of decisions is based on the locus classics in Re. Ex-parte
Sidebotham(1). The other line of decisions is to be found in Ex-parte
Official Receiver, In Re. Reed. Bowen & Co.(2) and Sevenoaks
Urban District Council v. Twynam(3). James, J. in the case of Ex-
parte Sidebotham said that "a person aggrieved' must be a man who
has suffered a legal grievance, a man against whom a decision has
been pronounced which has wrongfully deprived him of something,
or wrongfully refused him something, or wrongfully affected his title
to something." Lord Esher, M. R. on the other hand in Ex-parte
Official Receiver In Re. Reed, Bowen & Co.(2) said that the meaning
given by James, L.J. to the words person aggrieved' would not be an
exhaustive definition and the words would include a person who has
asked for a decision for which he had a right to ask, and has been
wrongfully refused. In the Sevenoaks(3) case Lord Hewart, C.J. said
"that when a person might make an objection and was entitled to a
decision upon it he would, if the decision was adverse to him be, able
to appeal".

These decisions indicate that the words person aggrieved' would have
different shades of meaning in accordance with the tenor of the
relevant statute. The observations of James, L.J. in the case of Ex-
parte Sidebotham turn on the meaning of the words person aggrieved'
occurring in the English Bankruptcy Act, 1914 which, inter alia,
provided that the orders of the Court in bankruptcy matters except in
cases specially excluded were subject to appeal at the instance of any
person aggrieved even if he had not appeared in the court below. It is
in the context of the English Bankruptcy Act that creditors, trustees,
administrators of a debtor (1) 14 Ch. D. 458 (3) [1929] 2 Y..B. 404.

(2) 19 Q.B.D. 174.

or bankrupt would have a legal grievance against whom a decision

has been pronounced which has wrongfully deprived him of
something, or wrongfully refused him something, or wrongfully
affected his title to something. Lord Hewart, C.J., in Sevenoaks
case(1) said "the problem is not what is the meaning of the expression
person aggrieved' in one or dozen statutes but what is its meaning in
this part of the Statute". In that case the relevant provision of
the Public Health Act conferred a power on a local authority to
provide within that district suitable parking place for vehicles. The
statute further in that case contemplated a notice of the proposal to
acquire land for using it as a parking place and objections, if any. to
such proposal. When objections were made, the local authority would
have to consider them. In the Sevenoaks case the Urban Council
considered the objection of a rate payer and thereafter proceeded with
the scheme of the parking place. Lord Hewart, C.J. in giving meaning
to the words person aggrieved' in that case said that first a person was
an author of an objection, and, secondly, he was aggrieved by the
refusal of his objection. It was held that a special individual right was
infringed. In the Sevenoaks(1) case there was neither a pecuniary nor
a proprietary grievance. The action of the local authority in providing
a parking place invited objections. It is the refusal of that objection
which constituted a grievance and it was a grievance sustainable in
law.

Mr. Daphtary relied on the observations of James, L.J. in Re.

Sidebotham (2) that a, disappointed person would not be a person
aggrieved' and also on the observations of Lord Coleridge in Queen v.
Keepers of the Peace and Justices of the County of London (3 ) that
one would not be an aggrieved person because someone was held not
to have done wrong. In other words, it was said that the Advocate
General would make submissions or advance contentions and the non-
acceptance by the Disciplinary Committee of such submissions would
not constitute either a legal grievance or rejection of a remedy asked
for.

Mr. Daphtary also leaned heavily on the decision of the Judicial

Committee in Attorney General of Gambia v. Pierre Sarr N' Jie(4) in
support of two propositions. First, that the Judicial Committee found
in the Gambian case that in the colonies the Attorney General
represented the Crown and was therefore the guardian of the public
interest. Mr. Daphtary submitted that the Advocate General did not
represent public interest in our country and therefore could not be said
to be a guardian of public interest. Secondly, the Judicial Committee
in the Gambian case said that in (1) [1929] 2 K.B. 404.

(3) 25 Q.B.D. 357.

(2) 14 Ch. D. 458.

(4) [1961] A. C. 617.

relation to disciplinary proceedings if a legal practitioner was

acquitted of misconduct no appeal was open to the Attorney General
because he had done his duty and was not aggrieved. Extracting that
proposition from the Gambian case Mr. Daphtary submitted that
similarly the Advocate General could not have any grievance where
an Advocate was acquitted.
The purpose and the provisions of the Advocates Act, 1961 will
determine whether the Advocate General is a person aggrieved within
the meaning of the relevant sections in the Act. It may not be out of
place to refer to the Bar Councils Act, 1926 which dealt with
disciplinary conduct of practitioners. Prior to the Advocates Act the
High Court under the Bar Councils Act, 1926 had power to suspend
any advocate from practice whom it found guilty of professional or
other misconduct. Under the said 1926 Act upon receipt of a
complaint made to it by any court or by Bar Council or by any other
person that any Advocate had been guilty of misconduct, the High
Court if it did not summarily reject the complaint referred the case for
enquiry to the Bar Council or after consultation with the Bar Council
to the Court of a District Judge and the High Court might of its own
motion refer any case in which it had reason to believe that any such
Advocate had been so guilty. If any case was referred under the Bar
Councils Act, 1926 for enquiry, the case was to be enquired into by
the Committee of the Bar Council which was called the Tribunal. The
Tribunal consisted of not less than three and not more than five
members of the Bar Council appointed for that purpose by the Chief
Justice or Chief Judge of the High Court, and one of the members so
appointed was the President of the Tribunal. The finding of a Tribunal
was forwarded to the High Court through the Bar Council and the
finding of a District Court was to be forwarded direct to the High
Court with a copy to the Bar Council. On receipt of the finding the
High Court was to fix a date for the hearing of the case and notice of
the date so fixed was to be given to the Advocate concerned and to
the Bar Council and to the Advocate General. The High Court was
also required under the statute to afford the Advocate concerned and
the Bar Council and the Advocate General an opportunity of being
heard before orders were passed in that case.

Mr. Desai relied on the provisions of the Bar Councils Act, 1926 to

show that under the said Act notice was to be given to the Advocate
General and that the Advocate General was entitled to be heard and he
relied on a decision of the Judicial Committee in Advocate General of
Bombay v. Phiroz Bharucha(1) and the decision of this Court
in Bhataraju Nageshwara Rao v. The, Hon'ble Judges of the Madras
High Court & Ors. (2 ) in support of two (1) 62 I. A. 235: 37 Bom. L.
R. 722.

(2) [1955] 1. S.C.R. 1055.

propositions, namely, that the Advocate General could prefer an

appeal and in an appeal preferred by the Advocate concerned, the
Advocate General would be a respondent to such an appeal. In
Bharucha's case(1) certain Advocates were members of Associations
declared unlawful by Government and they were convicted of
offences punishable under section 17(1) of the Criminal Law
Amendment Act, 1908. The High Court did not take any steps,
against the Advocates an the ground that it did not consider that
membership of an unlawful Association would render the Advocates
unfit for the exercise of the profession. The Advocate General of
Bombay made applications for special leave before the Judicial
Committee to appeal against the decision of the High Court. The
Judicial Committee did not grant any special leave and agreed with
the view of the High Court. No question was raised in the applications
before the Judicial Committee as to the maintainability of the
applications for special leave. It should be noticed that under the Bar
Councils Act there was no provision for any appeal. Mr, Desai rightly
relied on the decision of the Judicial Committee not for an actual
decision that the, Advocate General had a right of appeal but for the
purpose of showing that the Advocate General had not only locus
standi to make an application for leave but also could be said to have
been aggrieved by an order in relation to professional misconduct of
an Advocate. The Judicial Committee would not have entered into the
merits of the. case if the Advocate General had no right to apply for
leave to, appeal.

The decision of this Court in Bhataraju's case(2) was to the effect that
in an appeal preferred to the Supreme Court by an Advocate against
whom an order of suspension was passed by the High Court
under section 12 of the Bar Councils Act, the proper respondents
would be the complainant, if any, the Bar Council and the Advocate
General of the State concerned and not the High Court. The appeal to
this Court in Bhataraju's case(2) was by special leave. This Court held
that the Advocate General, the Bar Council and the complainant
would be parties to the appeal on the ground that notices under
the Bar Councils Act had been issued top those persons. The
decisions of this Court and the Judicial Committee both indicate, that
the Advocate General under the Bar Councils Act had locus standi in
making an application for leave to appeal and being a respondent to
an appeal preferred by the Advocate.

The position held by the High Court under the Bar Councils Act, 1926
is now occupied by the Bar Council under the Advo- cates Act. There
are State Bar Councils and there is also a Bar Council of India. Every
Bar Council is a body corporate. The (1) 62 I.A. 2350 (2) [1955] 1
S.C.R. 1055.

functions of the State Bar Council are inter alia to admit persons as
advocates on its roll; to prepare and maintain such roll; to entertain
and determine cases of misconduct against advocates on its roll; to
safeguard the rights, privileges and interest of advocates on its roll.
The functions of the Bar Council of India are to lay down- standards
of professional conduct and etiquette for advo- cates, to lay down the
procedure to be followed by the Disciplinary Committee of the Bar
Council of India and the Disciplinary Committees of the State Bar
Councils, to safeguard the rights, privileges and interests of
advocates. A Bar Council is empowered under the Act to constitute
one or more Disciplinary Committees.

Sections 35 to 44 deal with conduct of Advocates and powers of th e

Disciplinary Committees of the State Bar Councils as also of the Bar
Council of India. Under section 35 of the Act where on receipt of a
complaint or otherwise a State Bar Council has reason to believe that
any advocate on its roll has been guilty of professional or, other
misconduct, it shall refer the case for disposal to its Disciplinary
Committee. The Disciplinary Committee of a State Bar Council, if it
does not summarily reject the complaint, shall fix a date for the
hearing of the case and shall cause. a notice thereof to be given to the
advocate concerned and to the Advocate General of the State. The
Disciplinary Committee of a State Bar Council after giving the
advocate concerned and the Advocate General an opportunity of
being heard, may dismiss the complaint or reprimand the advocate,
suspend the advocate from practice for such period as it may deem fit,
or remove the name of the advocate from the State roll of advocates.
Where any notice is issued to the Advocate General, the Advocate
General may appear before the Disciplinary Committee of the State
Bar Council either in person or through any advocate appearing on his
behalf. These provisions establish first that the Advocate General is
entitled to a notice of the date of hearing, secondly, that no order can
be made by the Disciplinary Committee without giving an opportunity
to the Advocate General of being heard, and, thirdly, that the
Advocate General may appear in person or through any advo- cate. It
cannot be said that the Advocate General is appearing as a friend of
the Court. The right of the Advocate General to appear is based on
statute. The word may' is used to indicate the choice of the Advocate
General to appear in person or through any advocate. He may choose
not to appear at all. But when the Advocate General does appear, he
does so by virtue of the statutory rights and powers conferred on him.
It is, therefore, necessary to know as to why notice under the Act is
given to the Advocate General and why he is to be heard before an
order is made by the Disciplinary Committee.

The Judicial Committee in the Gambian case found that the name of
N'Jie was struck off the roll of barristers and solicitors of the Supreme
Court of Gambia by an order of Abbott, J., Deputy Judge of the
Supreme Court in the Colony of Gambia. The Deputy Judge had
jurisdiction to represent the Chief Justice in the exercise of his judicial
powers. The power to strike the name of the legal practitioner off the
roll was held by the Judicial Committee not to be a judicial power but
an administrative one of the Chief Justice of the Supreme Court of
Gambia. Therefore, the order of Abbott, J. was without jurisdiction.
The West African Court of Appeal under those circumstances set
aside the order of Abbott, J. The Attorney General of Gambia
thereupon preferred an appeal to the Judicial Committee. An appeal to
the Privy Council lay under section 31 of the West African (Appeal to
Privy Council) Order in Council, 1949. Broadly stated, the pro- vision
was to the effect that any person aggrieved by any judgment of the
Court could prefer ail appeal to His Majesty. The Judicial Committee
construed the words person aggrieved' occurring in section 31 of the
West African Order in Council, 1949 not to be subjected to a
restrictive interpretation but to include a person who has a genuine
grievance because an order has been made which prejudicially
affected his interest. The Attorney General of Gambia was found to
have sufficient interest for the purpose and the interest was held to be
a public one which the Attorney General represented. The Judicial
Committee also said that if the Judge found the practitioner guilty of
misconduct and the West African Court of Appeal of Gambia
reversed the decision which went to the jurisdiction of the Judge, or
was otherwise a point in which public interest was concerned, the
Attorney General would be a person aggrieved by the decision. The
Judicial Committee construed the words perso n aggrieved' to include
the Attorney General of Gambia as representing the public interest.

The most significant feature in sections 35 and 36 of the Act is that

the Disciplinary Committee does not either give any notice to or hear
the complainant. On the contrary notice is given under section 36 to
the Attorney General and under section 35 to the Advocate General.
The Disciplinary Committee without giving the Attorney General in
one case and the Advocate General in another case an opportunity of
being heard cannot pass any order against the Advocate concerned.
The Attorney General under Article 76 of the Constitution and the
Advocate General under Article 165 of the Constitution have to
discharge the functions conferred on them by or under the
Constitution or any other law for the time being in force. The
Advocates Act concerns the Advocate and it is in the fitness of things
that the Attorney General and the Advocate General of a State are
heard as persons representing the profession which assists the litigant
public and the courts in the administration of justice. The Attorney
General and the Advocates General of States are persons of high
standing and with long experience in the profession and it is
indisputable that they will ever adopt any partisan attitude in
proceedings before the Disciplinary Committee. The Advocates
Act gives special preeminence to the Attorney General and the
Advocate General in disciplinary proceedings because it is not an
attempt of the Disciplinary Committee to redress the grievance of an
individual complainant but to find out whether there is any breach of
professional standard and conduct. The high tradition, dignity and
purity of the Bar is to be maintained. The Attorney General and the
Advocate General are heard because they are heads of their respective
Bar and the proceedings affect discipline and dignity of the Bar and
touch the professional conduct of an Advocate.

They are not parties to a lis'. They have no personal or pecuniary or

proprietary interest in the matter. It is manifest that their locus standi
and interest is based on professional code of conduct and for the
purpose of upholding the purity of the Bar and preservation of correct
standards and norms in the profession. The Attorney General and the
Advocates General will uphold the professional discipline, dignity
and decorum and that is why no order is made by the Disciplinary
Committee without giving them an opportunity of being heard.

The issue before the Disciplinary Committee is whether there has

been professional misconduct and the question has to be looked at
purely from the point of view of profession. The profession touches
the public on the one hand and the courts on the other. On no other
basis could the presence of the Advocate General be explained.

In a recent decision of this Court in B. M. Madnani v. Com- missioner

of Workmen's Compensation, Bombay(1) the Commis- sioner of
Workmen's Compensation preferred an appeal for en- hancement of
penalties against the Advocate concerned. This Court held that the
Commissioner was entitled to maintain the appeal as a person
aggrieved. Mr. Daphtary at one stage contended that a complainant
would not be a person aggrieved within the meaning of the relevant
section of the Advocates Act to prefer an appeal. The decision of this
Court repels that submission.

It may not be out of place to notice that the Act uses the words person
aggrieved' and not the words party aggrieved'. First in disciplinary
proceedings there is no party. It is a matter touching the professional
conduct of the Advocate. The enquiry is by the Disciplinary
Committee. The Advocate is heard. The Attorney General in one case
and the Advocates General in other cases are heard. They are heard
not because they are parties but because they represent the interest of
the profession. They represent the standards to be maintained in the
profession. Suppose, (1) C.A. No. 877 of 1968 decided on October
10, 1968.

the Disciplinary Committee held proceedings without giving notice to

the Advocate General or made an order Without giving the Advocate
General an opportunity of being heard. In either Case the Advocate
General would be a person aggrieved. Would the participation by the
Advocate General in the proceedings before the Disciplinary,
Committee alter the position ? Neither. on logic nor on principle
could it be said that the Attorney General and the Advocates General
who have the right to be heard could not be persons aggrieved by the
decision. If they have the right to be heard they may have grievance as
to the result of the hearing.

The Attorney General and the Advocates General receive notice and
are entitled to be heard by virtue of the provisions in the statute. They
are performing statutory duties. They are not contemplated in the
statute as ordinary counsel. It was not them intention of the statute
that they would be merely neutral observers before the Disciplinary
Committee and they would have no duty to perform. They would
have to express their views one way or the other. It is true that they
would be completely free from personal favour or disfavour in these
matters touching the professional conduct. Their presence before the
Disciplinary Committee is explicable only on the ground of adhering
to the correct professional code. It would therefore be open to them
Attorney-General and the Advocate General to take the view that in a
matter of sufficient gravity a completely inadequate punishment
would not be in public interest of the profession. Similarly,if the
punishment is severe in a case, which did not merit such.action, the
Attorney General and the Advocate General would be persons
aggrieved to have it corrected. To accede to the contention of Mr.
Daphtary that the words, 'person aggrieved' refer only to Advocates
would be misreading the provisions. The words person aggrieved' will
be referable to,the Advocate concerned, the complainant and the
Attorney General or the Advocate General as the case may be. The
Attorney General and the Advocate General will be persons aggrieved
because they are interested in maintaining the professional rectitude.
The Attorney General and the Advocate General have the right of pre-
audience. Such right determines that they are leaders of the profession
in their respective fields. They will ask formatting the proper
standards of professional ethics. It is from that point of view that the
Attorney General and the Advocate General will be aggrieved persons
when they will find that them interest of the Bar, the, public interest
have not been proper safeguarded by decisions of the Disciplinary
Committee of-the Bar Council.

169 Sup CI/(P)-71-15 For these reasons I am of opinion that the

Advocate General of the State of Maharashtra is competent to appeal
as a person aggrieved under section 37 of the Advocates Act, 1961.

ORDER In accordance with the opinion of the majority, the appeal is

allowed and the order of the Bar Council of India is set aside. There
shall be no order as to costs. V.P.S.

5.4 Power of Review:

Section 44 of Advocates Act, 1961 confers powers of review on the
disciplinary committee of a Bar Council by its own motion or
otherwise. However, no order or review of the disciplinary committee
of the state Bar Council has any effect unless it has been approved by
the Bar Council of India. In O.N. Mahindroo v. Dist. Judge, Delhi,
the Supreme Court upheld the view of the Bar Council of India that
the Bar Council of India itself has no power to review any order made
by its disciplinary committee on appeal. But the Bar Council can
rather refer the matter to the disciplinary committee matters for
reconsideration. The power of revision is expressly granted to the
disciplinary committee of the Bar Council of India which may on its
own motion or otherwise review any order passed by itself. The word
’otherwise’ used under section 44 of Advocates Act, 1961, is very
wide to include a case referred by the Bar Council for review. The
court was of the view that since disciplinary proceedings against a
lawyer will not only involve the particular lawyer but the prestige of
the legal profession as well, that is why the powers of review of the
disciplinary committees should be interpreted in a wider sense so as to
enable the disciplinary committee to exercise its powers in required
cases, for or against an advocate even after the matter had been head
by them.

O. N. Mahindroo vs Distt. Judge, Delhi & Anr on 4 September,

1970
Equivalent citations: 1971 AIR 107, 1971 SCR (2) 11
Author: M Hidayatullah
Bench: Hidayatullah, M. (Cj)
PETITIONER:
O. N. MAHINDROO

Vs.

RESPONDENT:
DISTT. JUDGE, DELHI & ANR.

DATE OF JUDGMENT:
04/09/1970

BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
MITTER, G.K.
RAY, A.N.

CITATION:
1971 AIR 107 1971 SCR (2) 11
CITATOR INFO :
RF 1980 SC 674 (8)
R 1983 SC 990 (9)
RF 1983 SC1125 (7)
APL 1989 SC 245 (12)
ACT:
Advocates Act 1961, ss. 44 and 10(3)-Review-Bar Council
cannot review aecision of Disciplinary Committee-
Disciplinary Committee's power of review-Grounds for review
need not be similar or analogous to those found in s. 114 or
0.47 R. 1 of Code of Civil Procedure Principles of antre-
fois convict or antre- fois acquit also not applicable
Review petition must be dealt with objectively-Review by
Supreme Court, considerations for-Appeal to Supreme Court
under s. 38 Advocates Act, Scope of-Professional misconduct-
Proof of.

HEADNOTE:
The appellant was an advocate of this Court. A complaint
was made by the District Judge Delhi against him on 29th
February, 1964 to the Bar Council of the State of Delhi
alleging that he had mutilated a document by tearing two
pieces from it while examining a judicial record in the
courtroom in the presence of the junior clerk. The Bar
Council of the State of Delhi referred the matte, to its
Disciplinary Committee. The explanation of the appellant
before the Disciplinary Committee was of the Judges and the
staff of the District Court, Delhi.He denied that the
document was important or that he mutilated it.He asked
for summoning the torn document and the pieces but onlythe
document was received. According to the District Judge the
pieces were misplaced and could not be found. The
Disciplinary Committee held the appellant guilty of having
mutilatedthe document on the basis of the oral evidence of
the junior clerk. Theappellant, thereupon, appealed to
the Bar Council of India but the Disciplinary Committee of
the Bar Council of India dismissed the appeal. His appeal
to this Court under s. 38 of the Advocates Act was also
dismissed at the preliminary hearing. The appellant filed a
review petition before the Disciplinary Committee of the Bar
Council of India but it was rejected. The appellantthen
filed a writ petition in the High Court of Punjab (Delhi
Bench) challenging s. 38 of the Advocates Act and r. 7 and
Or. 5 of the rules of this Court as ultra vires Art. 138(2)
of the Constitution. The writ petition was admitted and a
rule nisi was issued. Meanwhile this Court in dealing with
a review petition filed by the appellant had issued a notice
to the District Judge to find out the torn pieces. The
District Judge reported that the mutilated document was a
copy of the lawyer's notice and that only a small piece of
half inch was missing from the bottom of the second page.
The pieces were not traceable. He also reported that the
junior clerk was not sure that any thing was written on the
torn pieces but according to his recollection the words
'true copy' followed by the signature Vir Bhan' were
written. This. Court dismissed the review petition on
September, 26, 1966. Thewrit petition in the High
Court was also dismissed by a single Judgeon October 12,
1966. In the proceedings it appeared that the document in
question had not been relied upon by the party which had
filed it. A letters patent appeal was filed against
Single judge's judgment and order. Before the Division
Bench the validity of s. 38 of the Advocates Act alone was
challenged. The Division Bench dismissed the ,)peal but

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2637 and

2638 of 1969.

Appeals by special leave from the order dated July 12, 1969 of the
Bar Council of India, New Delhi in Petition dated January 17, 1969 at
item No. 42 of 1969 and from the order dated October 4, 1969 of the
Disciplinary Committee of the Bar Council of India in Review
Petition No. 2 of 1969 respectively.
C. K. Daphtary, A. N. Mulla, Bishan Narain, W. S. Barlingay, and
O.N. Mohindroo, for the appellant (in both the appeals.).

M. Natesan, Uma Mehta, D. N. Misra and B. P. Singh, for respondent

No. 2 (in C.A. No. 2637 of 1969). A.S. R. Chari and B. Datta, for the
intervener (in both the appeals).

The Judgment of the Court was delivered by Hidavatullah, C.J.-The

appellant in these two appeals is an advocate any of this Court, who
on complaint by the District Judge, Delhi, 29 February, 1964, to the
Bar Council of the State of Delhi, was held guilty of professional
misconduct and suspended from practice for a year by the disciplinary
committee of the said Bar Council. He appealed to the disciplinary
committee of the Bar Council of India under s. 37 of the Advocates
Act. The appeal was dismissed. His appeal to this Court under S.
38 of the Act was dismissed summarily at the preliminary hearing.
The charge against him was that while inspecting a judicial record in
the company of Mr. Kuldip Singh Advocate, he tore out 2 pieces of
paper from an Exhibit (C-1). The pieces were thrown by him on the
ground. The clerk in-charge reported the incident to the District Judge
and the complaint followed. The suit, record of which was being
inspected, arose in the following circumstances. On February 6, 1963
Mr. Anant Ram Whig, an advocate, sent a notice on behalf of one
Sarin to a certain Ramlal Hans and his wife claiming a sum of Rs.
4,3701as reward for the success of their daughter at an examination
including tuition fees. Sarin was preparing the girl for the B.A.
examination. The claim of Sarin was repudiated by Ramlal Hans in a
reply dated February 11, 1963. The matter was referred to the
arbitration of Mr. Mansaram, Municipal Councillor, Delhi by an
agreement dated February 24, 1963. The arbitrator gave an award for
Rs. 1,000/- in favour of Sarin. The award was filed in the Court of
Mr. Brijmohanlal Aggarwal, Sub-Judge, Delhi for being made a rule
of the court. Ramlal Hans' engaged the appellant as advocate. The
appellant In his turn engaged two other advocates to conduct, the
actual cases and 'also filed his vakalatnama. A copy of the notice sent
by Mr. Whig was filed in the case (Ex. C-1) but was not yet proved.
On February 24, 196-3 the appellant went for the, inspection of the
record of the case in the company of his junior lawyer. The file was
given by Amrik Singh, the junior clerk of the Bench. Amrik Singh
then went out of the room but soon returned to his seat. Later he
charged the appellant of having torn 2 pieces from the document
(which was Ex. C-

1) and picked up the alleged pieces from the floor. Mr. Aggarwal then
arrived on the scene. The statement of the appellant was recorded.
The Sub-Judge also obtained reports from his junior and Assistant
clerks and made a report With the report he sent the Exhibit said to be
mutilated and the two pieces said to be the torn pieces of Ex. C-1 in a
sealed envelope. A complaint was also made to the District Judge by
Sarin. The District Judge then made a report and wrote that the
document was important in the case and action was, therefore, called
for.

The disciplinary committee of the Bar Council of the Union Territory

of Delhi took up the matter under s. 35 of the Advocates Act. The
explanation of the advocate was called for. He explained that the
charge was false and it was due to the ill-will of Mr. Aggarwal and his
staff because earlier he had made some serious allegations against Mr.
Kalra, Sub-Judge Ill Class in a transfer petition and had also started
contempt proceedings. According to the appellant this led to hostility
between the judges and their staff and him. He denied that the
document was imimportant or that he had mutilated it. He asked inter
alia for summoning the torn document and the pieces and they were
summoned. The original document was received but not the pieces.
The District Judge informed the Committee that the pieces were
misplaced and were not found. The appellant maintained that they
were put in the same envelope with the exhibit and he alleged that
they were suppressed to deny him a legitimate defence that they were
not a part of the same document.

Oral evidence was recorded. On the basis of the oral evi- dence of
Amrik Singh, the petitioner was held guilty of having wantonly
mutilated the document. The petitioner wanted to take a size to size
photostat of the exhibit but his request was turned down.
As stated already his appeal to the Bar Council of India was dismissed
by the disciplinary Committee of the Bar Council of India and later
his appeal to this Court was dismissed summarily on April 18, 1966 at
the preliminary hearing. Mr. A. K. Sen appeared for the appellant.

The appellant then seems to have lost his head. He made successive
applications of various kinds. He filed a review petition on April 23,
1966 before the disciplinary Committee of the Bar Council of India
but it was rejected on April 29, 1966. The appellant then filed a writ
petition in the High Court of Punjab (Delhi Bench) on May 23, 1966
challenging s' 3 8 of the Advocates Act and Rule 7 of Order V of the
Rules of this Court as ultra vires Art. 138(2) of the Constitution. The
Writ Petition was admitted and a rule nisi was issued. The appellant
before this had filed' a review petition in this Court and on September
12, 1966 this Court issued a notice to the District Judge to find out the
torn pieces. The District Judge reported on September 22, 1966 that
the mutilated document was a copy of a lawyer's notice and that only
a small piece of I" was missing from the bottom of the second sheet.
The pieces were not traceable. He also reported that the junior clerk
was not sure that anything was written on the torn pieces but
according to his recollection the words 'True copy' followed by the
signature 'Vir Bhan' were written, that this was not stated by him in
his earlier statements, and that the Assistant Clerk also said that
according to his recollection something 'Was written in ink on those
pieces but could not say what it was. The Supreme Court dismissed
the review petition on September 26, 1966. The appellant appeared in
person at the hearing.

The writ petition in the High Court was also dismissed by a single
Judge on October 12, 1966. The order shows that the original of Ex.
C-1 was not relied upon by Mr. Vir Bhan and that he had not
attempted to prove the copy, as there was no context about the notice.
It was contended before the High Court that-there was no motive to
tear two tiny pieces from a document which was not in issue. The
High Court seemed to agree with this but speculating as to possible
motives held that in view of the evidence of Amrik Singh, the
question of motive was immaterial. The High Court did not go further
than this into facts.
The learned single Judge considered the objection to the
constitutionality of the rules of this Court and overruled it. He held
that questions of fact could not be gone into in view of the successive
appeals and review petitions dismissed by the appropriate authorities.
A Letters Patent Appeal was filed against the single Judge's judgment
'and order. That appeal was heard by a Division Bench of the High
Court of Delhi and dismissed on December 22, 1966. Before the
Division Bench the validity of s. 38 of the Advocates Act alone was
challenged. An objection on merits was rejected because the order of
the disciplinary committee of the Bar Council of the Union Territory
was said to have merged in the order of the disciplinary committee of
the Bar Council of India and later in that of this Court. The High
Court granted a certificate. This Court was represented at the hearing
in as it was made a party to the writ petition.

The appeal filed in this Court as a result (C.A. No. 240 of 1967) was
dismissed by the Constitution Bench on January 8, 1968. Only the
validity of s. 38 of the Advocates Act and rules of this Court was
considered. The hearing was on 14 and 15 December 1967. The
appellant was in person. The Bar Council of Delhi and their
disciplinary committee were represented by Mr. Avadh Behari
Advocate, Mr. P. Rama Reddy and Mr. A. V. Rangam represented the
disciplinary committee of the Bar Council of India, the Supreme
Court (a party) was represented by Mr. Purshottam Tricumdas and
Mr. 1. N. Shroff and the Attorney General was represented by Mr. P.
Tricumdas and Mr. S. P. Nayyar. The hearing time was taken up by
the appellant and Mr. Purshottam Tricumdas, Mr. P. Rama Reddy
argued for 10 minutes and Mr. Avad Behari was not called upon.

The appellant then tried another review petition (No. 21 of 1968) on

the basis of the fresh evidence and report of the District Judge Delhi.
This Court (on December 2, 1968) summoned the record and allowed
the petitioner to take photostats of the Ex.C-I. The appellant also filed
a writ petition under Art. 32 of the Constitution (W.P. No. 69 of
1968). He first applied (C.M.P. 1171/68) for withdrawal of the writ
petition and then withdrew that application itself. The two, matters
were placed before the Court on April 11, 1968 and at one time it
appeared that Shri A. K. Sen had argued both of them but later Shri A.
K. Sen said he had only appeared in the writ petition and not in the
review petition and it was still undisposed of. As a result on August
12, 1968, the review petition was ordered to be placed again for
hearing. On the Court observing that on the basis of new material,
review should be asked for from the Bar Council of India, the review
petition was withdrawn on January 6, 1969. The review application
was not dismissed on merits.

The appellant then went before the Bar Council asking for
reconsideration of his case under ss. 44 and 10(3) of the Advocates
Act. The Bar Council passed an order through its Chairman (Mr. H.
D. Shrivastava). The Bar Council of India held that it had no
jurisdiction of any kind to reopen this matter ,although the
embarrassment involved in reconsidering the matter was removed by
the observations of the Supreme Court. According to the Bar Council
the disciplinary committee was not acting as a subordinate delegate of
the Council and the general power to safeguard the interests of the
Bar or any individual member could only refer to such interests as had
not 'been negatived by judicial process under the Advocates Act. The
petition was, therefore, dismissed. The Bar Council, however, went
on to observe ".............But we cannot part with this matter without
expressing our sense of uneasiness which arises from the production
before us of fresh material particularly a photostat of the document
said to have been torn by the petitioner. A look at the document opens
out a .reasonable possibility, that a reconsideration by the disciplinary
committee of this Council may lead to a dif- ferent result. The
petitioner may if so advised formally ask for a review by the
Disciplinary Committee."

The appellant then again applied for review of the order by the
disciplinary committee of the Bar Council of India. In a fairly long
order the disciplinary committee declined to reopen the case. The
disciplinary committee found fault with the single ,Judge of the High
Court of Punjab for not rejecting the writ petition on the short ground
that the High Court could not issue a writ to the Supreme Court. The
disciplinary committee also found it necessary to comment upon the
order of this Court inquiring from the District Judge, Delhi how the
pieces kept in safe custody were lost. The disciplinary committee also
commented upon the action of the District Judge in re-examining
witnesses who had been examined before.

The Disciplinary committee pointed out that in the second review

petition decided by the Committee on February 26, 1967, it refused to
take into consideration the report of the District Judge as it was not
evidence in the case and because the Supreme Court also did not
appear to have acted upon it when dismissing the review petition
before it. The Supreme Court's order was not a speaking order but had
merely dismissed the review petition summarily. The disciplinary
committee next consideard how the matter came before them. They
refused to take into account a 'casual observation' of the Judges in the
course of arguments before them in the review petition in this Court.
They speculated that parhaps the appellant was advised to withdraw
the review petition which otherwise would have had to be dismissed.
The Committee very reluctantly looked into the statements of
witnesses recorded by the District Judge when he reported about the
loss of the two pieces of paper. The matter was heard and the
disciplinary committee took time to consider their order. The
disciplinary committe held that in considering review application
to themselves they should not be over-technical and that they would
have granted review if there was any material on which it could be
granted. They, however, observed :

"...... It is however axiomatic that no Court or Tribunal can rewrite or

alter its Judgment once a Judgment has been signed and delivered.
We could entertain the review petition only on some ground similar or
analogous to those as mentioned in Section 114 and Order 47 Rule I
of the Code of Civil Procedure. But in this' case there is no such
ground available to the petitioner."

They held that as the order of the disciplinary committee had merged
in the decision of the Supreme Court, a review granted by them would
be incompetent. Having held this two members went on to consider
the merits, a procedure with which the third member dissented. His
observations in the circumstances were quite correct. This is what he
said :
"If what the petitioner says about the observations of the Supreme
Court that his remedy should be by a Petition for review, is correct,
the forum lies elsewhere and we cannot just entertain it. In this view
of the matter the observations made by the Bar Council of India in
their resolution dated 12th July, 1969, which are entitled to our
respect, may well be left alone mad (sic) need be commented upon."

The majority of the disciplinary committee however refused to be

guided by the observations of the Bar Council of India. They
observed that looking at the photostat copy did not advance the matter
any further and they had previously seen the original itself and on the
evidence they were satisfied that there was some writing on the pieces
to show that it was a true copy signed by the attestor. This was proved
by the evidence of Mr. Vir Bhan accepted by the disciplinary
committees of the two Bar Councils. They discarded the fresh
evidence' of the two clerks as not of any use to the appellant. They
went to the length of saying "Even if these witnesses had entirely
contradicted their earlier statements that would not have been a
ground for review. . . .".

Having said this they went on to say:

"........ However in the present case we have also examined the

depositions recorded by Shri Jagjit Singh and we do not find any
substantial difference between what they had stated earlier and what
they stated before him."

The fact that writing on the pieces was not mentioned earlier by the
clerks was not noticed. The majority then severely commented upon
the conduct of the appellant in charging the subordinate judiciary with
hostility and held this to be 'frivolous and unworthy of notice.' They
observed as follows "Even in our earlier Judgment we pointed out that
a defence of this nature calculated to de deter and intimidate
reponsible officers from discharging their public duty was highly
reprehensible."

They accordingly dismissed the review application expressing the

hope that that would be a close to this chapter. In two paragraphs
thereafter the majority commented strongly on other conduct of the
appellant in court cases and outside it which according to them was
deplorable. It is obvious that the disciplinary committee was annoyed
at the repeated attempts of the appellant to have his case reconsidered
by the superior authorities and the hearing he had got. From the
respective orders of the Bar Council of India and the disciplinary
Committee, these two appeals are brought. We granted special leave
in the matter arising out of the Bar Council's order limited to the
following two questions "(1 ) Whether the Bar Council has no
jurisdiction to direct the Disciplinary Committee to rehear the matter;
and (2)Whether the Disciplinary Committee was right in not
considering the matter afresh." In the other appeal the question is :
whether the disciplinary committee was right in refusing review and
whether we should, therefore, review the matter our selves, if we are
satisfied that the case deserves it. In so far as the jurisdiction of the
Bar Council of India is concerned we think the Bar Council acted
correctly when they refused to review the matter themselves. For the
Bar Council to do so would be an exercise of appellate power. That
power the Bar Council of India does not possess. But the Bar Council
of India was right in saying that the question raised before themselves
was sufficiently important for reconsideration and recommending it
for reconsideration to their Disciplinary Committee.

The provisions of the Advocates Act are no doubt precise in the

matters of appeals and review. In all cases tried by the Disciplinary
Committee of the Bar Council of a State (which term includes the
Union Territory of Delhi) an appeal lies to the Bar Council of India.
The appeal is, however, heard by the Disciplinary Committee of the
Bar Council of India and they dispose of it as they deem fit. The
Act does not say that the Disciplinary Committee is a reporting body
and the executable order must be made by the Bar Council of India.
This is made clear by the section that follows. It speaks of an appeal-,
to this Court against the order of the Disciplinary Committee. It an
order of the Bar Council were intended to be interposed (whether
endorsing or refusing to endorse the order of the Disciplinary
Committee) one would expect the appeal to this Court to lie against
the order of the Bar Council. But in the initiation of the proceedings
and again in the matter of appeal, the Bar Council is mentioned and
not the disciplinary Committee. Indeed under ss. 35(1) and 36(1) the
Bar Council of the State or of India, as the case may be, must be
satisfied that a prima facie case exists before they will refer the matter
to their Disciplinary Committee. This is in keeping with the
jurisdiction of the Bar Councils of the States laid down by s. 6 (1 ) (c)
under which Bar Council is to entertain and determine cases of
misconduct against advocates on its rolls and under cl. (d) with the
duty to safeguard the rights and privileges and interests of advocates
on its rolls. In regard to the Bar Council of India the same position
obtains under s. 7 (1) (d) (which is ipsissima verba with the
corresponding provisions of s. 6) read with s. 7(1) which lays down
the jurisdiction of the Bar Council of India to deal with and dispose of
any matter arising under the Act. Therefore the general
superintendence of ethics and etiquette of the profession and
questions of misconduct of the members are not wholly outside the
ken of the Bar Councils of the State or of India and are always within
their respective jurisdictions.

Next, the appeal to this Court is not a restricted appeal. It is not an

appeal on law alone but also on fact. Indeed s. 38 gives the Supreme
Court jurisdiction to pass in such appeals any orders it deems fit.
Therefore the appropriate Bar Council or this Court do not act
wrongly if they entertain subsequent petitions from a person whose
case has been dealt with by a disciplinary committee. The power of
review is expressly granted to the Disciplinary Committee of the Bar
Council which may on its own motion or otherwise review any order
passed by it. The word otherwise is wide enough to cover a case
referred by the Bar Council for review. There is a proviso which
makes the Bar Council. of India the final judge because no order of a
disciplinary committee of a State Bar Council on review has effect
unless it is approved by the Bar Council of India.

The powers of review are not circumscribed by the Act. The analogy
of the Civil Procedure Code must not be carried too far. Such powers
may 'be exercised in a suitable case for or against an advocate even
after the matter has gone through the hands of the Disciplinary
Committee at some stage or even through this Court. These matters
are also not governed by the analogy of autre fois convict or autrefois
acquit in the Code of Criminal Procedure. Disciplinary proceedings
against a lawyer involve not only the particular lawyer but the entire
profession. The repu- tation of the legal profession is the sum total of
the reputation of the practitioners. The honour of the lawyer and the
purity of the profession are the primary considerations and they are
intermixed.

During the hearing we gave an illustration which we may also give

here. Suppose an advocate is charged with embezzling the money of
his client. The advocate pleads that he paid the money in cash to the
client and obtained his receipt but the receipt is misplaced and he
cannot find it. He is disbelieved by the Disciplinary Committees and
even by this Court. Subsequently he finds the receipt and wishes to
clear his good name. The matter can be gone into again on the fresh
material. It is not only his right but also the duty of the those
including this Court to reconsider the matter. The Bar Council in any
event can restart the matter to clear him whether before any of the
authorities which dealt with the matter before.' The facts in the
illustration may be reversed to see the converse position where an
advocate gets off on a false plea of not having received the money at
all, if he can be successfully confronted with his own receipt which
the client had misplaced and could not lay hands upon in the first
instance.

From this it follows that questions of professional conduct are as open

as charges of cowardice against Generals or reconsideration of the
conviction of person 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 ?
The fact of the matter in this case is that too much emphasis was laid
on the oral evidence of a clerk who alone Raid that he had seen the
appellant tear two pieces from Ex. C.I. The Advocate's denial was not
accepted although there was word against matched the tear. There was
on evidence that the pieces found on the floor matched the tear. No
witness spoke of having taken the elementary care of matching the
pieces with Ex. C-I. Indeed the pieces having been lost the only
corroboration regarding the pieces has disappeared. The only
corroboration now is that the edges of Ex. C-1 show such a tear.
The question is whether this by itself is sufficient. There is no
evidence against the appellant except that of Amrik Sin-h. It is true
that there is no personal allegation against him of harbouring any
grudge or hostility beyond saying that the staff of the Courts were
against the appellant. As against this, one consideration is what was
the gain to the appellant by tearing the tiny pieces ? We shall
presently show how tiny they were. The charge is a serious one; and
we have to see the matter in the whole setting of the evidence. The
document said to be torn is a copy of a notice which Sarin's Counsel
had sent to the opposite side. The counsel for Sarin said that he had
not proved the document. Further the original notice could be
summoned. Exhibit C-1 was in two sheets 30.5 cm. x 20.5 cm. and
34.6 cm. x 21.5 cm. The second sheet was extraordinarily long and its
edges appear very much frayed. It was suggested at the hearing it
must have protruded from the rest of the file and thus got damaged in
the handling of the file. This was not given due weight.

We have examined the document carefully. It is a carbon copy of a

notice. The document ends thus :

Note : Copy of this notice' is being sent under postal certificate to

your wife.

Yours faithfully, The tear occurs 1.5 cm. to the left of 'ficate' and ends
below the letter 'A' in 'postal'. The letters of ',faithfully' are missing
except for the head of 'f' and so also letters 'der' in 'under' and parts of
'P' and 'o' in 'postal' are missing. The complainant claimed that the
document had an attestation 'true copy' followed by a signature and
that it had been torn out. The two clerks who had seen the pieces do
not definitely say that the pieces had any writing and as the pieces
have disappeared we cannot get corroboration. They had originally
not said this but now at a later stage they have deposed about the
writing on the pieces. We have therefore, done the best to discover the
truth. This is the result of our observations : The document is a
rectangular foolscap sheet, rather old paper which is frayed along the
edges. As the fraying edges were falling off we have secured them
with transparent scotch tape. One piece actually fell off when the
papers was being examined by us but the piece has been secured in
situ with scotch tape. Another piece found in the file could not be
matched' and has been secured in the margin with scotch tape so that
it may not be lost. It-belongs to the same paper. Now for a description
of the paper.

Fortunately the machine cut edges are available on all four sides
enabling us to measure the paper and to find out the exact
.measurements of missing parts. This will enable us to find out if an
attestation and a signature could have been written at all on these
papers. It is obvious that the tearing if deliberate, as .is suggested,
must have been to tear out not the blank space left .on the bottom of
the typewritten portion but of some writing, typed ar manuscript.

The paper is exactly 34.6 cm. x 21.5 cm. As no portion is alleged to

be torn from the top or the sides we may ignore the measurement of
the breadth except to compare it with the tear. The tear today is found
along 17.5 cm. out of the total breadth ,of 21.5 cm. We have already
said that except for 1.5 cm. to the left of the letters 'ficate' the tear falls
directly below the .typed portion and that is 15.5 cm. in length. 7.5
cm. are below the portion where the last line of typing 'ficate' to your
wife' and the words 'yours faithfully' occur. The bottom of these typed
letters are exactly 34.4 cm. from the top leaving a strip which would
be .2 cm. In other words out of a tear of 17.5 cm., 8 cm. allow only a
space of .2 cm. for any writing. Now for the remaining 8 cm. This is
made up of 2.5 cm. below 'tal certi' which is almost whole and there is
no writing on this portion. That leaves a tear of 5.5 cm. measures
lengthwise where thereis no typing on top. This is made up of 3
traingular portionsjoined by the .2 cm. strips below typed portions. 1
st triangle is 2 cm. iin length with 1 cm. perpendicular from apex to
base. The second is 3.2 cm. base with a perpendicular of 1 ,cm. and
the third is 2.8 cm. by 1 cm.

Therefore out of the total length of 17.5 cm., 7.5 cm. is a strip
uniformly of .2 cm. There are 3 triangles, in length respectively 2 cm.,
3.2 cm. and 2.8 cm. with the height almost at the centre in each case I
cm. The photostat of the document is an annexe and can be seen also.
We took the measurements from the original. It is easy to see how
small will be space for writing. The three triangles of which only 2
could be hold to be torn by the appellant could not have contained the
words of attestation and signatures. The one of the extreme left is so
situated that no one would write there an attestation. The three
triangles are separated by 4 cm. and 3.5 cm. and it is impossible to
think that the attestation was written in one triangle and the signature
in another for there was not enough space to write them one above the
other even if one could cramp in one line. Further with the typing
having gone to .2 cm. from the bottom anyone wishing to write an
attestation would ordinarily write it in the margin where plenty of
space was available and that is the usual course lawyers adopt when
the writing goes right down to the bottom. We are, therefore, satisfied
that there was no writing on the pieces and the halting testimony of
the 2 clerks should not have been accepted without corroboration.
They said nothing about it when they were first examined.

The sum total of our observations may now be stated. The document
was merely a copy of which the original could be summoned. One
sheet was unduly long and was likely to protrude from the file of
papers and thus liable to get frayed. It is frayed and the paper is
showing more tears today. The typing had gone to the very bottom of
the paper and there was not sufficient space to write in a natural hand
the attestation and to sign it. There was blank paper in the margin
where the attestation could be conveniently written and signed. The
document was not necessary for the decision of the case and Mr. Vir
Bhan had not even attempted to prove it. It was being inspected to
find out the original case of the claimant after the case had gone to
arbitration and there was an award. Nothing was to be gained by
tearing it or even by tearing out the attestation even if there was. one.
of course it would be improper even to to tear out the blank portion
but no one indulges in such a silly and useless act. There was serious
allegation against a judge of the court and there was a possibility of
the appellant being the target of hostility and the evidence against him
was of a single clerk. There was word against word.

The question that arises is what are we to do. We have held above that
the disciplinary committee could be asked to reconsider the matter by
the Bar Council. The order of the disciplinary committee does show
that although they held that the Bar Council had acted without
jurisdiction, they went on to express their satisfaction with what they
had already done. The reexamination was not made objectively but
with the intention of reaffirming their decision by every argument for
it. No attempt was made to find whether the circumstances were such
that the .appellant could be said to have proved satisfactorily the
contrary of what was held or had created sufficient doubt in the
matter. The earlier findings were affirmed when there was no need to
do so as the petition for review was held incompetent. At the hearing
before us the Bar Council of India applicared and supported the case
of the advocate. Mr. Natesan said that in the opinion of the Bar
Council, it would be proper for this Court to go into the matter.
Previously the Bar Council had probably supported the case against
the appellant. The stand of the Bar Council in the case before us was
this "The Disciplinary Committee of the Bar Council, while finding
that it has no jurisdiction to review the matter in view of the prior
appeal to this Court, has gone also into the merits of the case,
examined it ela- borately with reference to the material stated to be
new matter and has come to the same conclusion. The question that
now arises is whether the Supreme Court can review the matter itself
in this appeal when the Disciplinary Committeehad no jurisdiction,
and set aside the order made by the Disciplinary Committee on the
merits. It may be a different thing if this Court now reviews the order
in the light of the materials placed before the Court after the
production of the original document stated to have been torn which ex
facie shows that it could not have been deliberate or wanton".

Another body of lawyers, namely, the Bar Association of the Supreme

Court sought permission to intervene and were heard. Mr. A. S. R.
Chari on behalf of the Association strongly supported the advocate's
case. Thus we have the entire Bar of the country and the entire Bar of
this Court unanimously asking this Court to go into the matter.

It appears to us, therefore, that the Bar Council of India does not wish
to oppose the review by us of our order and indeed they invite us to
grant relief to the appellant. Ordinarily we would have been unwilling
to grant a review after this Court had declined to do so on in earlier
occasion. But the Circmstances are different. Our view of the matter
is also that the charge of deliberately and want only mutilating an
important document in a judicial file has not been as clearly made out
as one would wish. This Court on earlier occasions, taking the fact,,-,
from the order of the disciplinary committees, declined to interfere as
no question of law was involved. It decided the, appeal summarily
without issuing notice or sending for the record There is force in the
contention that aTi advocate is entitled to a full appeal on facts and
law under s. 38 of the Advocates Act. Since the disciplinary
jurisdiction of the High Court has been taken away a right of appeal to
this Court has been substituted. This Court must in all cases go into
the matter to satisfy itself that justice has been by the disciplinary
committee or committees. tees. 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 thereis
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 India are unanimous that the appellant deserves to
have the order against him disbarring him from practice set aside.
Looking at the matter for ourselves we find that the document said to
be mutilated was not needed for the case. In any event it was only a
carbon copy and not an original. No part of the typed portion was
damaged except very slightly. The tear in two places equal to a third
of a small postage stamp are the subject of the charge. In our opinion
there was most probably no writing there as there was hardly any
space available and the whole of the margin was available to write the
attestation of 'true copy'. The clerks did not speak of any writing at
first and now too in a very halting, manner. No steps were taken to
match the alleged pieces with the tears and the pieces have not been
preserved. Thus there is the word of Amrik Singh against that of the
appellant. There was a background of hostility which the appellant
had created by his aggressive action in other cases. Whether he
handed the paper roughly and a piece came off which lie threw down
without noticing it or the paper gave way and a piece fell (as it did
when we handled it) it is not possible to say with definiteness. We
find it difficult to believe that this multilation, without any rhyme or
reason, was done with a sinister motive. This is the unanimous view
of the entire Bar of India speaking through Counsel.

Our duty is clear. We would have paused to consider the law

applicable to reviews in such matters but we do not think should
ascertain it in this 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. The Bar
Council thinks that the decision against the appellant is unsustainable.
We see no reason to differ from them. We accordingly grant review in
this case and set aside the order disbarring the appellant from practice
which had been passed. against him. There shall be no order about
costs.

G.C.

Conclusion:

It is indeed very satisfying to learn that the legal aid and advocates
conduct is under the observation and power of the Bar Council of
India. Discipline is important in every aspect, and in the profession
where people come to seek justice has to be equally disciple and any
act of misconduct should not be ignored. The person who is looked
upon for providing justice has to be clean.

N.B. Mirzan vs The Disciplinary Committee Of The ... on 15

September, 1971
Equivalent citations: AIR 1972 SC 46, (1972) 4 SCC 412, 1972 (4)
UJ 164 SC
Author: D Palekar
Bench: S Sikri, D Palekar, A Ray

JUDGMENT D.G. Palekar, J.

1. This is an appeal under Section 38 of the Advocates Act, 1961. The

appellant, Mr. N.B. Mirzan, was an Advocate on the roll of the Bar
Council of Maharashtra. On 27th October, 1964, respondent No. 2,
who was once the client of the appellant, made several allegations of
professional misconduct against the appellant which were referred by
the State Bar Council to its Disciplinary Committee consisting of
three Advocates, one being the Committee's Chairman and the other
two its members. After a detailed inquiry into the allegations, the
Disciplinary Committee came to the conclusion that professional
misconduct had been established on three counts which involved
moral turpitude. The Commitee, therefore, directed on 3rd October,
1968 that the appellant should be suspended permanently and should
not be allowed to appear before any Court, authority or person in
India. He was also directed to surrender his Sanad forthwith. From
this order, an appeal was filed to the Bar Council of India, being
Appeal No 9 of 1968. The appeal was heard by the Disciplinary
Committee of the Bar Council of India consisting of a Chairman and
two members. On 30th November, 1969, by a detailed order, the
Disciplinary Committee confirmed the findings of the State
Disciplinary Committee but, as regards the punishment, it directed
that the appellant be suspended from practice for a period of five
years and to pay to Respondent No. 2 a sum of Rs. 850/-within two
months. It was further directed that, if the amount was not paid, the
punishment imposed by the State Disciplinary Committee striking out
the appellant's name from the roll of Advocates would stand
confirmed. It is from this Order that the present appeal has been filed.

2. Respondent No. 2, Saidur Rehman, engaged the appellant as his

Advocate in an obstructionist notice issued to him by the Presidency
Small Cause Court, Bombay, in R.A.E. Suit No. 2491 of 1961.
Respondent No 2 had been introduced to the appellant by one Noor
Mohammed who was a client of the appellant. At the time of his
engagement, no fees as such were paid, but a sum of Rs. 190/-was
demanded by the appellant for court-fee stamps and that amount was
paid to the appellant Thereafter, on 26th April, 1962, the appellant
demanded from respondent No. 2's wife, Khurshid Begum, a sum of
Rs. 975/-on the representation that the amount was required for
deposit in the above suit byway of rent. A Receipt was issued by the
appellant for this amount and it is Ext. A. On 16th August, 1962, the
appellant demanded a further sum of Rs 250/-representing that this
amount was necessary for payment to some Judge or officer for
getting the rent bill transferred in the name of respondent No. 2 in
respect of the premises which were the subject-matter of the above
suit. In respect of this payment also, the appellant issued a Receipt
dated 16th August, 1962 which is Ext. B.

3. The constructionist notice was discharged on 13th September,

1962, the order being in favour of respondent No. 2.

4. Thereafter, the landlord filed Suit No. 3402 of 1963 in the City
Civil Court, Bombay against respondent No. 2 and his brother for
ejectment and mesne profits In this suit also, the appellant was
engaged by respondent No. 2 as his Advocate. A written statement
was filed admitting that no rent had been paid by respondent No. 2 to
his landlord from May, 1961 onwards. In view of this admission, the
City Civil Court passed an order directing respondent No. 2 to deposit
in Court the amount due for arrears of rent from May, 1961 to
September, 1963. This order was passed on 25th September, 1963.
The amount was to be paid within two months from that date. Since
respondent No. 2's wife had already paid F". 975/-to the appellant on
26'h April, 1962 and the amount was more than sufficient for making
the deposit in accordance with the order of the City Civil Court,
respondent No. 2 remained under the impression that the deposit
would be made by the appellant in due course. In January, 1964, the
appellant gave a notice to respondent No. 2 to come with the money
for the purposes of deposit and this started the whole trouble, ending
with the complaint by respondent No. 2 in the State Bar Council on
27th October, 1964. It appears that, before filing this complaint,
notices were exchanged between the parties and a settlement was
brought about between the appellant and respondent No. 2 and, under
this settlement, the appellant undertook to pay to respondent No. 2 Rs.
1,000/-by instalments of Rs. 160/-per month. The appellant sent the
first instalment of Rs. 150/-by money order on 11th October, 1964
The case of the appellant in respect of this money order, however,
was that the money order had been sent to respondent No 2, as
respondent No. 2 had asked for a loan and the appellant took pity on
him in spite of the strained relations between the parties.

5. Chronologically, the three items of payments in respect of which

we have before us concurrent findings of professional misconduct are
as follows :

(1) Demand and receipt by the appellant of Rs. 190/-from respondent

No. 2 on the representation that the amount was required for
purchasing court fee stamps in suit R.A.E. No. 2491/1961. There was
no formal receipt issued in respect of this amount.

(2) Demand and receipt by the appellant of Rs 975/-from respondent

No. 2's wife on 26th April, 1962. The Receipt issued by the appellant
is Ext. A and reads as follows:

Received from Smt. Khurshid Begum sum of Rs. 975/-to be paid in

small causes Court in Suit No. 2491/62 including expenses rent and
deposit in the above matter.

3. Demand and receipt by the appellant of Rs. 2.10/-from respondent

No. 2 on 16th August, 1962 Ext. is the formal Receipt given by the
appellant on that date and it reads as follows :

Received from Shri Saidul Rehman the sum of Rs 250/-for

transferring the rent bill in his name in Civil Suit No. 2491/61 of
Small Causes Court.

In respect of all these three payments, respondent No. 2 alleged that

these several payments had been made to the appellant on the
representations made by him which respondent No. 2 and his wife, in
their ignorance, thought were bona fide demands But, later they
realised that the demand for Rs. 190/-to purchase court fee stamps
was a false demand, because no court fee stamps were necessary to be
paid by respondent No 2 in an obstructionist notice. Similarly the
second demand of Rs. 975/-for depositing the amount in court was a
false demand, because no order could possibly be passed by the Court
asking an obstructionist to make deposit in Court towards rent. The
third demand of Rs. 250/-was also a false demand, because there
could be no proceedings for transferring the rent bill in the name of
respondent No. 2 in the absence of any negotiations with the landlord.
It was the allegation of respondent No. 2 that taking advantage of the
ignorance and illiteracy of respondent No. 2 and his wife, the
appellant had demanded and received all these amounts with a view to
misappropriate the same.

6. So for as the first count of Rs. 190/-is concerned, there was no

specific denial of the receipt of this amount by the appellant in his
written statement. In his evidence the appellant tried to explain that no
specific denial was made in the written statement, because he had
stated in his written statement that for every payment received he had
given a receipt and he had, therefore, impliedly denied the demand
and receipt of Rs. 190/-since, admittedly, there was no formal receipt
for it. This explanation has been rejected by both the Disciplinary
Committees. Respondent No. 2 examined Noor Mohammed as his
witness in the case and Noor Mohammed has supported respondent
No. 2's statement that he had paid Rs. 190/-to the appellant. Noor
Mohammed was a former client of the appellant and it was Noor
Mohammed who had introduced respondent No. 2 to the appellant
when the obstructionist notice was issued by the Court to respondent
No 2 After his engagement as Advocate, the appellant, according to
Noor Mohammed, demanded Rs 190/-for purchasing court fee stamps
and, therefore, respondent No 2 in his presence paid Rs 190/-to the
appellant. In support of this, Noor Mohammed produced 4 page in his
diary in which he had noted that the appellant hid been paid Rs. 190/.
for stamps. Both the Disciplinary Committees saw no reason why
Noor Mohammed a previous client of the appellant, should give false
evidence against him. Some sort of confusion was sought to be
introduced by the appellant by referring to an endorsement on Ext. B
to the effect that a sum of Rs. 190/-had been received by way of fees
and expenses in the suit. But this endorsement is made by the
appellant on 18th September, 1962, i.e., after the obstructionist notice
was discharged and it has nothing to do with the payment of Rs. 190/-
made to him at the beginning of his engagement as an Advocate
which, according to the State Disciplinary Committee, was in 1961.
We are, therefore, satisfied that the appellant had demanded and
received Rs. 190/-for the purchase of court fee stamps in the
beginning of his engagement as an Advocate, though, in fact, he did
not have to purchase any court fee stamps.

7. Coming to the second item of Rs. 975/-there is no dispute that the

appellant had demanded and received this amount on 26th April, 1962
from respondent No. 2's wife, Smt. Khurshid Begum. The Receip-Ext.
A itself goes to show that the amount had been received by the
appellant for making a deposit in Court against expenses or rent. It is
further admitted by the appellant that no order had been made by the
Court for the deposit of rent and it is clear to anybody knowing court
proceeding that, in a proceeding by the landlord to remove
obstruction, there can be hardly any occasion for the Court to make an
order against the obstructionist to pay rent in Court. Then again, if
any such order were made by the Court, the Court would normally
give the obstructionist time to make payment and the appellant could
then have asked his client to bring the money for the deposit The
obstructionist proceeding was pending on 26th April, 1962 and it was
actually disposed of in favour of respondent No. 2 in September,
1962. Admittedly, there was no interim order to making any deposit
Therefore, there was really no occasion at all on 26th April, 1962 for
the appellant making a demand for the amount from respondent No
2's wife and receiving the same for the ostensible purpose of
depositing the amount in Court. It is obvious that he obtained this
amount on a false pretext and, when such a demand is made on a false
pretext, the inference Would naturally follow that the demand had
been made with a view to missappropriate the amount.

8. Having received the amount and missappropriated the same, the

appellant put forward the defence that this amount had been actually
returned to respondent No. 2 on 13th September, 1963 in the court
premises when the Obstructionist notice was discharged. In support of
this, the appellant produced an alleged Receipt Ext. 2 Both the
Disciplinary Committees were inclined to the view that this was a
suspicious document if not a false document. In the first place, the
appellant would not normally be expected to have such a large
amount on his person on 13th September, 1963 when the
obstructionist notice was discharged. The amount had been paid to
him on 26th April, 1962 and it is impossible to accept his story that,
on every occasion when the proceedings were taken up in Court, he
was carrying this amount with him on his person, so that, if an order
was made for a deposit the amount would be immediately deposited
and, if the notice was discharged, he would be in a position to return
the amount to respondent No. 2. The Receipt Ext. 2 is on a full sheet
of ledger or cartridge paper. We have seen the document ourselves
and we have no doubt at all that its very appearance shows that it is a
suspicious document. At the bottom of the paper, three thumb
impressions have been obtained one below the other, one of
respondent No. 2, another of his wife, and the third of his brother,
Fazal Nakimullah. Above these thumb impressions, the Receipt is
drawn up entirely in the handwriting of the appellant himself. When
respondent No. 2 was shown this document during the course of the
inquiry, he was unable to say whether the thumb impression supposed
to be his was his thumb impression. No attempt was made to prove by
expert evidence that it was respondent No. 2's thumb impression.
Respondent No. 2, however, admitted that, when demanded by the
appellant, he had put his thumb impression on a blank cartridge paper
as he had to go to Moradabad, his native place, leaving his wife
behind to look after the litigation. In other words, the suggestion of
respondent No. 2 was that the appellant took his thumb impressions
on blank papers, so that they could be used during his absence for the
purpose of the litigation. Ordinarily, a Receipt for payment of money
would not be written on a cartridge or ledger paper and there is force
in the evidence of respondent No. 2 that he had put his thumb
impression on some blank ledger paper for being used in the course of
the proceeding in Court. Now, if Rs. 975/-were returned to respondent
No 2 in the court premises themselves, there would be no good reason
why the receipt should be thumb-impressed by two other persons be
ides respondent No. 2. Respondent No. 2's wife was there and one
could understand if the appellant had taken a Receipt from her,
because it was she who had made the payment. But the strange thing
about the document is that the thumb impression of the wife Khurshid
Begum has been duly cancelled by the appellant in his own
handwriting. It will be further noted thal, underneath the alleged
thumb mark of the brother Fazal Hakimullah and opposite the
endorsement "L.T.I, of, ''the original letters on which there is heavy
overwriting, is the endorsement Fazal Hakimullah. One other curious
feature of this Receipt is that the thumb impressions are supposed to
be attested by two witnesses, one Khan Saheb and one Miss Lizza
pias. Khan Saheb has not been examined and it is clear from what the
State Disciplinary Committee has stated that Miss Lizza Pias was not
an independent witness. She had been seen almost every day outside
the Bar Council Office when the Stale Disciplinary Committee met in
connection with the present proceedings. She, however, admitted that
she had not seen the appellant paying the amount to respondent No. 2,
nor did she read the paper she signed as a witness and further
admitted that she was not aware of the contents of that writing. Both
the Disciplinary Committee have held that Ext. 2 was not a genuine
document and we are satisfied that this finding is correct.

9. Corroboration is further found in what happened later in 1964 after

dispute started between respondent No 2 and the appellant. In about
October, 1964, the disputes, according to respondent No. 2, were
settled in he presence of one Mr. Qureshi and the appellant agreed to
pay Rs 1000/-to respondent No. 2 by instatements of Rs 150/-per
month. Accordingly, the first instalment was sent to respondent No. 2
by money order on 11th October, 1964, and it is admitted by the
appellant that he had sent the money order for Rs. 150/. He, however,
explained that respondent No. 2 along with a social worker had seen
the appellant on 10th October, 1964 and requested him or a loan. Out
of pity, the appellant says, he sent the money order in question by way
of loan on 11th October, 1964. The explanation was regarded by both
the Committee as false, because under the circumstances of the case
and in vie of the bitter disputes between the parties, it was extremely
unlikely that the appellant would make any loan to respondent No 2.
On the other hand, Shri Nardan Ali Qureshi has corroborate
respondent No. 2 and settled that in his presence the dispute had been
settled between the appellant and respondent No. 2 and the appellant
had agreed to pay the amount of Rs. 1000/-in instalments of Rs. 150/-
per month. The story of the loan has been rejected by both the
Committees and the evidence of respondent No. 2 and Quereshi has
been accepted, in which case it is impossible to believe that the
appellant had returned the sum of Rs. 975/-to respondent No. 2 as far
back as 13th September, 1962. We, therefore, agree with the
concurrent finding of both the Committees that the appellant had
demanded and received Rs. 975/-from respondent No. 2's wife
Khurshid Begum on a false representation that the amount was
required to be deposited in Court and thereafter misappropriated the
same.

10, The third item is of Rs. 250/-. There is no dispute that this amount
was received by the appellant either from respondent No. 2 or his
wife. Respondent No. 2 says that it was received from his wife during
his absence. The receipt Ext. B, however, is made in the name of
respondent No. 2. The contents of the Receipt themselves go to
support respondent No. 2's case that this amount had been paid,
because the appellant had represented that the amount was required
for transferring the rent bill in respect of the premises in the name of
respondent No. 2. The amount was received by the appellant on 16th
August, 1962, i.e. much before the obstructionist notice had been
discharged. The appellant had great difficulty in explaining what this
Receipt meant. In the notices exchanged in 1964, the appellant had
denied altogether having received this sum of Rs. 250/-for the purpose
of the transfer of the rent bill. In the written statement before the State
Disciplinary Committee, the appellant did not categorically deny the
receipt of Rs. 250/-. He suggested there that he had been instructed by
respondent No. 2 to file a declaratory suit for transferring rent bill in
his name. One does not know what this really means. The
obstructionist proceedings were still pending and one does not know
what kind of proceedings could be taken in a court of law for
transferring the rent bill. It is not the case that there were any
negotiations with the landlord for transferring the rent bill in the name
of respondent No. 2. Then again, if any such suit was to be filed, the
appellant and his client would have thought about it only after the
obstructionist proceedings had come to an end and not in August,
1962. In his evidence, the appellant stated that this amount of Rs.
 250/-had been paid to him by respondent No. 2 of his own accord and
the appellant had never suggested that any declaratory suit was
required to be filed. This is rather a tall story. Seeing that the story
was unconvincing, the appellant changed his case later and started
that this sum of Rs. 250/-was paid to him towards the court-fees in
respect of the intended declaratory suit, his fees and other pocket
expenses. That explanation is also false, because it is nobody's case
that any such declaratory suit was ever filed. It is, hence, clear that the
appellant was not at all able to explain why he demanded this amount
of Rs. 250/-. The conclusion is irresistible that he must have
represented that this amount was required to pay somebody for the
purposes of transferring the bill of the suit premises in the name of
respondent No. 2, knowing quite well that it was impossible to secure
a transfer of the rent bill in legal proceedings in court. The amount
had been screwed out by the appellant on a false representation for the
purposes of misappropriation. In our opinion, the findings of both the
Disciplinary Committees were right and unexceptionable. Normally,
this Court does not entertain an appeal from a concurrent finding of
facts. We have, however, gone through the facts to satisfy ourselves
that no injustice has been done.

11. The State Disciplinary Committee had permanently debarred the

appellant from practising as an Advocate, but, in appeal, the
Disciplinary Committee of the Bar Council of India has taken a more
lenient view and suspended the appellant from practice for a period of
five years on condition that he pays respondent No. 2 Rs. 850/-within
two months. No argument was addressed to us on the question of
punishment. Therefore, it is not necessary to consider the point.

In the result, the appeal fails and is dismissed with costs.

N. G. Dastane v. Shrikant S. Shivde, 2001(4) RCR (Cri.) 491

(SC): AIR 2001 SC 2028.
N.G. Dastane vs Shrikant S. Shivde And Anr on 3 May, 2001
Author: Thomas
Bench: K.T. Thomas, R.P. Sethi, S.N. Phukan
CASE NO.:
Appeal (civil) 3543 of 2001

PETITIONER:
N.G. DASTANE

Vs.

RESPONDENT:
SHRIKANT S. SHIVDE AND ANR.

DATE OF JUDGMENT: 05/05/2001

BENCH:
K.T. Thomas, R.P. Sethi & S.N. Phukan

JUDGMENT:

THOMAS, J.

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J We are much grieved, if

not peeved, in noticing how two advocates succeeded in tormenting a
witness by seeking numerous adjournments for cross-examining him
in the Court of a judicial magistrate. On all those days the witness had
to be present perforce and at considerable cost to him. It became a
matter of deep concern to us when we noticed that the judicial
magistrate had, on all such occasions, obliged the advocates by
granting such adjournments on the mere asking to the incalculable
inconvenience and sufferings of the witness. When he was convinced
that those two advocates were adopting the tactics of subterfuge by
putting forth untrue excuses every time for postponing cross-
examination he demurred. But the magistrate did not help him.
Ultimately when pressed against the wall he moved the State Bar
Council for taking disciplinary proceedings against the advocates
concerned. But the State Bar Council simply shut its doors informing
him that he did not have even a prima facie case against the
delinquent advocates. He met the same fate when he moved the Bar
Council of India with a revision petition, as the revision petition was
axed down at the threshold itself. The exasperated witness, exhausted
by all the drubbings, has now come before this Court with this appeal
by special leave.

Appellant, the aforesaid aggrieved witness, describes himself to be an

agriculturist scientist. He claims to have worked as an Advisor in the
UNO until he retired therefrom. He filed a complaint before the
Judicial Magistrate of First Class, Pune (Maharashtra) against some
accused for the offence of theft of electricity. The accused in the said
complaint case engaged Advocate Shri Shivde (the first respondent)
and his colleague Shri Kulkarni (the second respondent) who were
practising in the courts at Pune. The two respondent-advocates filed a
joint Vakalatnama before the trial court and the trial began in 1993.
Appellant was examined in-chief. Thus far there was no problem.

The agony of the appellant started when the Magistrate posted the
case for cross-examination of the appellant on 30.7.1993. As per the
version of the appellant, he had to come down from New York for
being cross-examined on that day, but the second respondent advocate
sought for an adjournment on the ground that it was not possible to
conduct the cross-examination unless all the other witnesses for the
prosecution were also present in court. We have no doubt that such a
demand was not made with good faith. It was aimed at causing
unnecessary harassment to witnesses. No other purpose could be
achieved by such demand. Although the court was conscious that
insistence of presence of the other witnesses has no legal sanction the
Judicial Magistrate conceded to the request and posted the case to
23.8.1993.
On that day, appellant and all his witnesses were present in court. But
both the respondents sought for an adjournment, the first respondent
on the premise that he was busy outside the court, and the second
respondent on the premise that the father of the first respondents
friend expired. The Judicial Magistrate yielded to that request,
apparently in a very casual manner and adjourned the case to
13.9.1993.

On that day also the respondents sought for an adjournment but on a

flippant reason. Appellants counsel raised objections against the
prayer for adjournment. Nevertheless the Judicial Magistrate again
adjourned the case and posted it to 16.10.1993. We may point out that
the said date was chosen by the court as the respondents represented
to the court that the said date was quite convenient to them.

Appellant, thoroughly disgusted, had two options before him. One

was to get dropped out from the case and the other one was to
continue to suffer. He had chosen the latter and presented himself
along with all the witnesses on 16.10.1993. But alas, the respondents
again asked for adjournment on that day also. This time the
adjournment was sought on the ground that one of the respondent
advocates was out of station. It seems that the Judicial Magistrate
yielded to the request this time also and posted the case to 20.11.1993
peremptorily. It would have been a sad plight to see how the appellant
and his witnesses were walking out of the court complex without the
case registering even a wee bit of progress in spite of his attending the
Court on so many days for the purpose of being cross-examined. His
opposite party would have laughed in his mind as to how his
advocates succeeded in tormenting the complainant by abusing the
process of court through securing adjournments after adjournments.
The complainant would have wept in his mind for choosing a judicial
forum for redressal of his grievance.

On 20.11.1993, appellant and all his witnesses were again present,

possibly with a certitude that they would be examined at least now
because of the peremptory order passed by the Magistrate on the
previous occasion. Unfortunately, the peremptoriness of the order did
not create even a ripple on the respondents advocates and they
ventured to seek for an adjournment again on the ground that one of
the respondents advocates was indisposed. There was not even a
suggestion as to what was the inconvenience for the co-advocate.
Even so, the Magistrate yielded to that request also and the case was
again adjourned to 4.12.1993.

The flash point in the cauldron of the agony and grievance of the
appellant reached on 4.12.1993. He presented himself before the court
for being cross- examined, despite all the frets and vexations suffered
by him till that day hoping that at least on this occasion respondents
would not concoct any alibi for dodging the cross-examination. But
the second respondent who was present in the court sought for an
adjournment again with a written application, on the following
premise:

Advocate Shivde (first respondent) is unable to speak on account of

the throat infection and continuous cough. The doctor has advised him
to take two weeks rest. Hence he is unable to conduct the matter
before this Honble court today. It is therefore prayed that the hearing
may kindly be adjourned for three weeks in the interest of justice.

The Judicial Magistrate without any qualms or sensitivity succumbed

to the said tactics also and granted the adjournment prayed for. The
magistrate did not care even to ask the second respondent why he
could not conduct the cross-examination, if his colleague first
respondent is so unwell. But the magistrate felt no difficulty to
immediately allow the request for again adjourning the case. Of
course the magistrate ordered that a medical certificate should be
produced by the first respondent and cost of Rs.75/- should be paid to
the appellant. A poor solace for the agony inflicted on him.

According to the appellant, after the case was adjourned on

4.12.1993, he went out of the court room and while he was walking
through the corridors of the court complex he happened to come
across the first respondent forcefully and fluently arguing a matter
before another court situated in the same building. It was that sight
which caused him to venture to lodge the complaint against both the
respondents before the Maharashtra State Bar Council on 27.12.1993.
He had narrated the details of his complaint in the petition presented
before the State Bar Council and prayed for taking necessary actions
against the two advocates.

Both the respondents filed a joint reply to the above complaint in

which they stated, inter alia, that respondent No.1 was suffering from
severe throat infection and temperature and was under medical
treatment of Dr. Manavi and that respondent No.1 sought
adjournments in all the cases in which prolonged cross-examination
was required and he was not in a position to speak continuously
because of severe cough problem. They did not say anything about
the large number of occasions they sought for adjourning the cross-
examination of the complainant.

The State Bar Council obtained a report from its Advocate Member
Sri B.E. Avhad. That report says that he interrogated the parties and
understood that the complaint is without any substance. It was on the
strength of the said report that the State Bar Council has dropped
further proceedings against the respondents. The Revision Petition
was disposed of by the impugned order holding that the Bar Council
of Maharashtra was perfectly justified in passing the impugned
resolution dated 12.11.1994 and we see no reason to interfere with the
same; no prima facie case is made out against the respondents and
there is no reason to believe that the advocate had committed
professional or other misconduct.

When we heard the arguments of Shri PH Parekh, learned counsel for

the appellant and Sri Vijay S.Kotewal, learned Senior counsel for the
respondents we felt, apart from the question of professional
misconduct of the respondents, that the Judicial Magistrate, who
yielded to all the procrastinative tactics, should be made answerable
to the High Court so that action could be taken against the Magistrate
on the administrative side for such serious laches. We, therefore,
called upon the said Magistrate to show cause why we shall not make
adverse remarks against the magistrate in our judgment. The said
Judicial Magistrate has now explained that she had only started
working as a regular magistrate just after completing the training on
6.7.1993. If so, the Judicial Magistrate would have been a novice in
the judicial service. On that ground alone, we persuade ourselves to
refrain from recommending any disciplinary action against the
Magistrate. Be that as it may, we now proceed to consider whether the
acts attributed to the respondents amounted to professional
misconduct.

Chapter V of the Advocates Act 1961 (for short the Act) contains
provisions for dealing with the conduct of Advocates. The word
misconduct is not defined in the Act. Section 35 of the Act indicates
that the misconduct referred to therein is of a much wider import. This
can be noticed from the wordings employed in sub-section (I) of that
Section. It is extracted herein:

Where on receipt of a complaint or otherwise a State Bar Council has

reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to
its disciplinary committee.

The collocation of the words guilty of professional or other

misconduct has been used for the purpose of conferring power on the
Disciplinary Committee of the State Bar Council. It is for equipping
the Bar Council with the binocular as well as whip to be on the qui
vive for tracing out delinquent advocates who transgress the norms or
standards expected of them in the discharge of their professional
duties. The central function of the legal profession is to help
promotion of administration of justice. Any misdemeanor or misdeed
or misbehaviour can become an act of delinquency, if it infringes such
norms or standards and it can be regarded as misconduct.

In Blacks Law Dictionary misconduct is defined as a transgression of

some established and definite rule of action, a forbidden act, a
dereliction from duty, unlawful behaviour, willful in character,
improper or wrong behaviour; its synonyms are misdemeanor,
misdeed, misbehaviour, delinquency, impropriety, mismanagement,
offense, but not negligence or carelessness.

The expression professional misconduct was attempted to be defined

by Darling J. in A Solicitor ex p the Law Society, in re [1912 (1) KB
302) in the following terms:
If it is shown that an advocate in the pursuit of his profession has
done something with regard to it which would be reasonably regarded
as disgraceful or dishonourable by his professional brethren of good
repute and competency, then it is open to say that he is guilty of
professional misconduct.

In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC 264] this
Court has quoted the above definition rendered by Darling J., which
was subsequently approved by the Privy Council in George Frier
Grahame vs. Attorney General (AIR 1936 PC 224) and then observed
thus:

Misconduct envisaged in Section 35 of the Advocates Act is not

defined. The section uses the expression misconduct, professional or
otherwise. The word misconduct is a relative term. It has to be
considered with reference to the subject matter and the context
wherein such term occurs. It literally means wrong conduct or
improper conduct.

Advocate abusing the process of court is guilty of misconduct. When

witnesses are present in Court for examination the advocate
concerned has a duty to see that their examination is conducted. We
remind that witnesses who come to the Court, on being called by the
Court, do so as they have no other option, and such witnesses are also
responsible citizens who have other work to attend for eking out
livelihood. They cannot be treated as less respectables to be told to
come again and again just to suit the convenience of the advocate
concerned. If the advocate has any unavoidable inconvenience it is his
duty to make other arrangements for examining the witnesses who is
present in Court. Seeking adjournments for postponing the
examination of witnesses who are present in Court even without
making other arrangements for examining such witnesses is a
dereliction of advocates duty to the Court as that would cause much
harassment and hardship to the witnesses. Such dereliction if repeated
would amount to misconduct of the advocate concerned. Legal
profession must be purified from such abuses of the Court procedures.
Tactics of filibuster, if adopted by an advocate, is also professional
misconduct.
In State of UP vs. Shambhu Nath singh [JT 2001 (4) SC 319] this
Court has deprecated the practice of Courts adjourning cases without
examination of witnesses when such witnesses are in attendance. We
reminded the Courts thus:

We make it abundantly clear that if a witness is present in court he

must be examined on that day. The court must know that most of the
witnesses could attend the court only at heavy cost to them, after
keeping aside their own avocation. Certainly they incur suffering and
loss of income. The meagre amount of Bhatta (allowance) which a
witness may be paid by the court is generally a poor solace for the
financial loss incurred by him. It is a sad plight in the trial courts that
witnesses who are called through summons or other processes stand at
the doorstep from morning till evening only to be told at the end of
the day that the case is adjourned to another day. This primitive
practice must be reformed by presiding officers of the trial courts and
it can be reformed by every one provided the presiding officer
concerned has a commitment to duty. No sadistic pleasure in seeing
how other persons summoned by him as witnesses are stranded on
account of the dimension of his judicial powers can be a persuading
factor for granting such adjournments lavishly, that too in a casual
manner.

When the Bar Council in its wider scope of supervision over the
conduct of advocates in their professional duties comes across any
instance of such misconduct it is the duty of the Bar Council
concerned to refer the matter to its Disciplinary Committee. The
expression reason to believe is employed in Section 35 of the Act
only for the limited purpose of using it as a filter for excluding
frivolous complaints against advocates. If the complaint is genuine
and if the complaint is not lodged with the sole purpose of harassing
an advocate or if it is not actuated by mala fides, the Bar Council has
a statutory duty to forward the complaint to the Disciplinary
Committee.

In Bar Council of Maharashtra vs. MV Dabholkar [1976 (2) SCR 48]

a four Judge Bench of this Court had held that the requirement of
reason to believe cannot be converted into a formalised procedural
road block, it being essentially a barrier against frivolous enquiries.

In our opinion, the State Bar Council has abdicated its duties when it
was found that there was no prima facie case for the Disciplinary
Committee to take up. The Bar Council of India also went woefully
wrong in holding that there was no case for revision at all. In our
considered view the appellant complainant has made out a very strong
prima facie case for the Disciplinary Committee of the State Bar
Council to proceed with. We, therefore, set aside the order of the State
Bar Council as well as that of the Bar Council of India and we hold
that the complaint of the appellant would stand referred to the
Disciplinary Committee of the State Bar Council.

Section 36(2) of the Advocates Act reads thus: Notwithstanding

anything contained in this Chapter, the disciplinary committee of the
Bar Council of India may, either of its own motion or on a report by
any State Bar Council or an application made to it by any person
interested, withdraw for inquiry before itself any proceedings for
disciplinary action against any advocate pending before the
disciplinary committee of any State Bar Council and dispose of the
same.

As the complaint is now, by virtue of this judgment, pending before

the Disciplinary Committee of the State Bar Council we consider the
question whether it is appropriate that the Bar council of India takes it
up for the purpose of referring it to its Disciplinary Committee. As the
misconduct alleged is of the year 1993-94 the ends of justice demand
that the Disciplinary Committee of the Bar Council of India should
now deal with the complaint. For that purpose we order that the
complaint of the appellant would stand referred to the Bar Council of
India under Section 36 of the Advocates Act. Now we direct the said
Disciplinary Committee to adopt such steps as are necessary for the
disposal of the complaint in accordance with law and in the light of
the observations made above.

The appeal is disposed of accordingly.

4.      Refusing to accept a case without justification.
5.      Attending court proceedings in drunken state.
6.      Attempting to influence judicial officers for favour.
7.      Carrying on other trade or business. Running of STD/Photocopier
in the name of advocate. Licence cancelled for 5 year. Bhupinder
Kumar Sharma v. Bar Ass. Pathankot, Jt 2001 (9) (SC) 480: AIR
2002 SC 41
Bhupinder Kumar Sharma vs Bar Association Pathankot on 31
October, 2001
Author: S V Patil
Bench: D.P. Mohapatra, Shivaraj V. Patil
CASE NO.:
Appeal (civil) 6304 of 1998

PETITIONER:
BHUPINDER KUMAR SHARMA

Vs.

RESPONDENT:
BAR ASSOCIATION PATHANKOT

DATE OF JUDGMENT: 31/10/2001

BENCH:
D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:
SHIVARAJ V. PATIL J.

The appellant has filed this appeal, under Section 38 of The

Advocates Act, 1961 (hereinafter referred to as `the Act) against the
judgment and order dated 4.11.1998 passed by the Disciplinary
Committee of the Bar Council of India, confirming the order passed
by the Disciplinary Committee of Bar Council of Punjab & Haryana
removing the name of the appellant from the States Roll of Advocates
under Section 35(3)(d) of the Act.

The appellant was enrolled with the State Bar Council as an Advocate
on 16.9.1994 vide enrolment No. P/771/94. On 9.9.1995, the
respondent-association made a written complaint to the State Bar
Council making allegations of misconduct against the appellant. The
State Bar Council took cognizance of the complaint and referred the
complaint to its Disciplinary Committee. After the completion of the
proceedings in D.C.E. No. 1/1996, order was passed by the
Disciplinary Committee of State Bar Council to remove the name of
the appellant from the State Roll of the Advocates and the same was
confirmed by the Disciplinary Committee of the Bar Council of India,
in appeal. Hence, this appeal.

The learned senior counsel for the appellant strongly contended that
the allegations made in the complaint were not established or proved,
judged by the standard of proof required in a case like this; the
appellant was not actually carrying on business and the evidence on
this point was not properly appreciated; at any rate, the punishment
imposed on the appellant is grossly disproportionate even assuming
that the misconduct was proved.

Per contra, the learned senior counsel for the respondent made
submissions supporting the impugned order. He drew our attention to
the evidence brought on record to show how the findings recorded
against the appellant are justified. He also strongly contended that the
misconduct of the appellant before and even after filing of the appeals
before the Bar Council of India and this Court in continuing the
business cannot be condoned; further in spite of giving undertaking
before this Court, he is still continuing his business as is supported by
the report of the Sub-judge made to this Court. According to him, the
punishment imposed on the appellant is proper in the absence of any
good ground to take any lenient view.

We have carefully considered these submissions.

The complaint contained allegations of misconduct against the

appellant for the period prior to the date of enrolment as an Advocate
and also subsequent to his enrolment. Since the Disciplinary
Committee of the State Bar Council did not go into the allegations of
misconduct pertaining to the period prior to the date of enrolment, it is
unnecessary to refer to them.

According to the complainant, the appellant was guilty of professional

misconduct as he was carrying on and continued his business and
business activities even after his enrolment as an Advocate, stating
thus:-

(i) He was running a photocopier documentation center in the court

compound, Pathankot, and the space for the same was allotted to the
appellant in his personal capacity on account of his being handicap;

(ii) He was running a PCO/STD booth which was allotted in his name
from the P&T Department under handicap quota;

(iii)He was proprietor/General Manager of the Punjab Coal

Briquettes, Pathankot, a private concern and he was pursuing the
business/his interest in the said business even on the date when his
statement was recorded by the Disciplinary Committee on 12.5.1996.

The defence of the appellant was that although he was running

business prior to his enrolment, he did not continue the same after his
enrolment as an Advocate and he ceased to have any business interest,
and that it is his father and brother who were carrying on the business
after he became an Advocate under some oral arrangement. The
Disciplinary Committee of the State Bar Council, after considering
the evidence placed on record both oral and documentary, recorded a
finding that the appellant was guilty of professional misconduct in
carrying on business in the aforementioned concerns even after his
enrolment as an Advocate and passed order to remove his name from
the States Roll of Advocates under Section 35(3)(d) of the Act and
debarred him from practising as an Advocate. The Disciplinary
Committee of the Bar Council of India, in the appeal filed by the
appellant on re- appreciation of the material on record, concurred with
the finding recorded by the Disciplinary Committee of the State Bar
Council and held that the appellant was guilty of professional
misconduct and that the punishment imposed on him debarring the
appellant from practising for all time was just. Hence, dismissed the
appeal.

In the impugned order, it is also noticed that the appellant submitted

his application form for enrolment. Column No. 12 of the application
form reads:-

12. Whether or not applicant engaged or has ever been engaged in any
trade, business or profession, if so the nature of such trade,
business/profession and the place where it is or was carried on. The
answer submitted by appellant advocate is as under:

No, not applicable.

According to the Disciplinary Committee of Bar council of India, the

appellant had not only procured enrolment by submitting the false
declaration but also suppressed the material fact; otherwise the
appellant would not have been enrolled at all. In the said order, it is
further stated that as a matter of fact, besides it being the case of
misconduct, it is also a case where the name of the appellant could be
removed for suppressing the material fact; anyhow since the reference
had not been made for the same, it is left open to the State Bar
Council to take such action under Section 26 of the Act.

CW-1, Shri Manohar Lal, Senior Telecommunication Office

Assistant, has deposed that STD/PCO has been allotted to appellant
on 6.4.1992 in the handicap quota and the same is continuing in the
name of the appellant as per the record even after his enrolment as an
Advocate; no intimation was given by the appellant to the Department
to transfer STD/PCO in the name of his brother Satish Mohan. CW-3,
Shri Vipin Tripathi, a clerk in the office of S.D.O. in his evidence has
stated that space for kiosk for installation of photocopy machine on
payment of Rs. 120/- per month, was allotted on lease basis on
6.5.1991 by Dy. Commissioner, Gurdaspur, to the appellant in
handicap quota; there was no intimation to change lease in favour of
anybody and there is no transfer of lease in favour of any other
person; the lease amount is paid even after appellants enrolment as an
Advocate in his name. CW-3, H.S. Pathania, in his evidence has
supported the allegations made in the complaint. The appellant in his
evidence has stated that he has no concern with the business of
STD/PCO and Photostat machine. RW-2, Satish Mohan, the brother
of the appellant has stated that he has no arrangement with the
appellant regarding PCO. In his cross- examination he has admitted
that he is still in the service of sugar mills, Dasuya. Hence, it was
rightly concluded that STD/PCO business is being run by the
appellant himself even after becoming an Advocate. RW-3, Shri
Puran Chand Sharma, the father of the appellant in his evidence has
admitted that the appellant is having his office in the same cabin
where photocopier machine is installed. In the evidence led on behalf
of the complainant, it is stated that the site of kiosk for running the
photostat business is still in the name of the appellant and lease
money is also being paid by the appellant and in the absence of the
appellant giving intimation to the Department/authorities concerned
regarding handing over of business to Shri Puran Chand Sharma or
Satish Mohan, the assertion regarding the oral agreement was not
believed by the Disciplinary Committee of the State Bar Council and
rightly so in our opinion. The Disciplinary Committee of the State Bar
Council in its order has objectively considered the evidence brought
on record. As already stated above, the Disciplinary Committee of the
Bar Council of India on re-appreciation of the evidence has concurred
with the findings recorded by the Disciplinary Committee of the State
Bar Council based on oral and documentary evidence.

Having perused both the orders and the evidence placed on record, we
are of the view that the finding recorded holding the appellant guilty
of professional misconduct is supported by and based on cogent and
convincing evidence even judged by the standard required to establish
misconduct as required to prove a charge in a quasi criminal case
beyond reasonable doubt. We do not find any merit in the argument
that the misconduct alleged against the appellant was not properly
proved by the standard required to prove such a misconduct. There is
also no merit in the contention that the evidence was not properly
appreciated by both the Disciplinary Committees; nothing was
brought on record to discredit the evidence led on behalf of the
complainant and no material was placed to support the allegation of
the appellant that the members of the respondent-Association had any
grudge or ill-will against the appellant.

It is to be further noticed that this Court on 26.2.1999 passed the

following order:-

Learned counsel for the appellant wants to file an affidavit in the form
of an undertaking that the petitioner is not personally engaging
himself in any of the family businesses.

Adjourned for two weeks.

Pursuant to the said order, the appellant has filed

affidavit/undertaking. Para 3 of the affidavit/ undertaking reads:-

I state on oath before this Honble Court that since the day of my
enrolment as an Advocate, I have not engaged myself in any business
except my practice of law as an Advocate and I undertake before this
Honble Court that I shall not ever engage either actively or otherwise,
in any other business or profession while I continue my enrolment as
an Advocate.

The order made by this Court on 2.9.1999 reads:-

Mr. Sudhir Walia, learned counsel appearing for the Bar Association,
Pathankot placed before us the photographs of the cabin where the
photocopying machine is installed. The photograph discloses the
name board of the petitioner and also an inscription in Punjabi
language Bhupindra Photostat Centre. The learned counsel appearing
for the Bar Association, Pathankot says that these photographs placed
before us have been taken yesterday only. It is contended that,
therefore, the undertaking filed in this Court that the petitioner was
not conducting any business in his name, could not be accepted. This
fact is disputed by learned senior counsel appearing for the petitioner.

We are, therefore, constrained to call for a report from the learned

Sub-Judge at Pathankot as to whether the cabin in which the
photocopying machine is installed contains, apart from the name
board of the petitioner an inscription Bhupindra Photostat Centre and
whether such inscription was there till yesterday and is continuing as
of today. The learned Sub-Judge shall also furnish the details
regarding the allotment of the place within the Court compound
wherein this cabin has been put up. The report will be submitted
within four weeks from today. A copy of this order will be sent to the
learned Sub-Judge at Pathankot today itself.

List the matter after the report from the learned Sub-Judge at
Pathankot is received.

Pursuant to the same, the Sub-judge submitted a report, which also

goes against the appellant.

We are unable to say that the concurrent finding recorded by both the
Disciplinary Committees against the appellant as to his professional
misconduct, is a finding based on no evidence or is based on mere
conjuncture and unwarranted inference. Hence, the same cannot be
disturbed.

What remains to be seen is whether the punishment imposed on the

appellant is grossly disproportionate. Having regard to the nature of
misconduct and taking note of the handicap of the appellant, in our
opinion, debarring him from practising for all time is too harsh. We
consider it just and appropriate to modify the punishment to debar the
appellant from practising upto end of December, 2006. Except the
modification of punishment as stated above, the impugned order
remains undisturbed in all other respects. The appeal is disposed of in
the above terms. No costs.

.......................J.

[D.P. Mohapatra] .......................J.

 [Shivaraj V. Patil] October 31, 2001.

8.      Committing crimes.
9.      Financing litigation.
10.  Obtaining client’s signature on blank papers.
11.  Shouting slogans or holding demonstration in front of the court.
12.  Approaching investigative officers for favour during investigation of
a case.
13.  Writing letter to the presiding officer in connection with the pending
case.
14.  Tampering with the witness
15.  Suggesting the client to bribe the presiding officer. Letter to client to
arrange the money for bribing the judge. Licence cancelled. Sambhu
Ram Yadav v Hanuman Das Khotey. JT 2001 (5) (SC) 618: AIR
2001 SC 2509.
Shambhu Ram Yadav vs Hanum Das Khatry on 26 July, 2001
Author: Y.K.Sabharwal
Bench: K.T. Thomas, Y.K. Sabharwal
CASE NO.:
Appeal (civil) 6768 of 2000

PETITIONER:
SHAMBHU RAM YADAV

Vs.

RESPONDENT:
HANUM DAS KHATRY
DATE OF JUDGMENT: 26/07/2001

BENCH:
K.T. Thomas & Y.K. Sabharwal

JUDGMENT:

Y.K.SABHARWAL,J.

Legal profession is not a trade or business. It is a noble profession.

Members belonging to this profession have not to encourage
dishonesty and corruption but have to strive to secure justice to their
clients if it is legally possible. The credibility and reputation of the
profession depends upon the manner in which the members of the
profession conduct themselves. There is heavy responsibility on those
on whom duty has been vested under the Advocates Act, 1961 to take
disciplinary action when the credibility and reputation of the
profession comes under a clout on account of acts of omission and
commission by any member of the profession.

In this appeal while issuing notice this Court had stayed till further
orders the impugned order passed by the Disciplinary Committee of
the Bar Council of India. We admit the appeal and heard learned
counsel for the parties. On facts, there is not much dispute. The facts
material for the decision of this appeal briefly are as follows:

A complaint filed by the appellant against the respondent, Advocate

before Bar Council of Rajasthan was referred to Disciplinary
Committee constituted by the State Bar Council. In substance, the
complaint was that respondent while appearing as a counsel in a suit
pending in a civil court wrote a letter to Mahant Rajgiri his client inter
alia stating that his another client has told him that the concerned
judge accepts bribe and he has obtained several favourable orders
from him in his favour; if he can influence the judge through some
other gentleman, then it is different thing, otherwise he should send to
him a sum of Rs.10,000/- so that through the said client the suit is got
decided in his (Mahant Rajgiri) favour. The letter further stated that if
Mahant can personally win over the judge on his side then there is no
need to spend money. This letter is not disputed. In reply to
complaint, respondent pleaded that the services of the Presiding Judge
were terminated on account of illegal gratification and he had
followed the norms of professional ethics and brought these facts to
the knowledge of his client to protect his interest and the money was
not sent by his client to him. Under these circumstances it was urged
that the respondent had not committed any professional misconduct.

The State Bar Council noticing that the respondent had admitted the
contents of the letter came to the conclusion that it constitutes
misconduct. In the order the State Bar Council stated that keeping in
view the interest of the litigating public and the legal profession such
a practice whenever found has to be dealt with in an appropriate
manner. Holding respondent guilty of misconduct under Section 35 of
the Advocates Act, State Bar Council suspended him from practice
for a period of two years with effect from 15th June, 1997.

The respondent challenged the aforesaid order before the Disciplinary

Committee of Bar Council of India. By order dated 31st July, 1999,
the Disciplinary Committee of Bar Council of India comprising of
three members enhanced the punishment and directed that the name of
the respondent be struck off from the roll of advocates, thus debarring
him permanently from the practice. The concluding paragraph of the
order dated 31st July, 1999 reads thus:

"In the facts and circumstances of the case, we also heard the
appellant as to the punishment since the advocate has considerable
standing in the profession. He has served as advocate for 50 years and
it was not expected of him to indulge in such a practice of corrupting
the judiciary or offering bribe to the judge and he admittedly
demanded Rs.10,000/- from his client and he orally stated that
subsequently order was passed in his client's favour. This is enough to
make him totally unfit to be a lawyer by writing the letter in question.
We cannot impose any lesser punishment than debarring him
permanently from the practice. His name should be struck off from
the roll of advocates maintained by the Bar Council of Rajasthan.
Hereafter the appellant will not have any right to appear in any Court
of Law, Tribunal or any authority. We also impose a cost of
Rs.5,000/- to the appellant which should be paid by the appellant to
the Bar Council of India which has to be paid within two months."

The respondent filed a review petition under Section 44 of the

Advocates Act against the order dated 31st July, 1999. The review
petition was allowed and the earlier order modified by substituting the
punishment already awarded permanently debarring him with one of
reprimanding him. The impugned order was passed by the
Disciplinary Committee comprising of three members of which two
were not members of the earlier committee which had passed the
order dated 31st July, 1999.

The review petition was allowed by the Disciplinary Committee for

the reasons, which, in the words of the Committee, are these:

"1) The Committee was under the impression as if it was the

petitioner who had written a letter to his client calling him to bribe the
judge. But a perusal of the letter shows that the petitioner has simply
given a reply to the query put by his client regarding the conduct of
the judge and as such it remained a fact that it was not a offer on the
side of the delinquent advocate to bribe a judge. This vital point
which touches the root of the controversy seems to have been ignored
at the time of the passing the impugned order.

2) The petitioner is an old man of 80 years. He had joined the

profession in the year 1951 and during such a long innings of his
profession, it was for the first time that he conducted himself in such
an irresponsible manner although he had no intention to bribe.

3) The Committee does not approve the writing of such a letter on the
part of the lawyer to his client but keeping in view the age and past
clean record of the petitioner in the legal profession the Committee is
of the view that it would not be appropriate to remove the advocate
permanently from the roll of advocates.......The Committee is of the
considered view that ends of justice would be met in case the
petitioner is reprimanded for the omission he had committed. He is
warned by the Committee that he should not encourage such activities
in life and he should be careful while corresponding with his client.

In view of the aforesaid observations, the review petition is accepted

and the earlier judgment of the Committee dated 31.7.1999 is
modified to the extent and his suspension for life is revoked and he is
only reprimanded."

We have perused the record. The original order has been reviewed on
non-existent grounds. All the factors taken into consideration in the
impugned order were already on record and were considered by the
Committee when it passed the order dated 31st July, 1999. The power
of review has not been exercised by applying well settled principles
governing the exercise of such power. It is evident that the reasons
and facts on the basis whereof the order was reviewed had all been
taken into consideration by the earlier Committee. The relevant
portion of the letter written by the advocate had been reproduced in
the earlier order. From that quotation it was evident that the said
Committee noticed that the advocate was replying to letter received
from his client. It is not in dispute that the respondent had not
produced the letter received by him from his client to which the
admitted letter was sent requiring his client to send Rs.10,000/- for
payment as bribe to the concerned judge. We are unable to understand
as to how the Committee came to the conclusion that any vital point
in regard to the letter had been ignored at the time of the passing of
the order dated 31st July, 1999. The age and the number of years the
advocate had put in had also been noticed in the order dated 31st July,
1999. We do not know how the Committee has come to the
conclusion that the respondent `had no intention to bribe the judge'.
There is nothing on the record to suggest it. The earlier order had
taken into consideration all relevant factors for coming to the
conclusion that the advocate was totally unfit to be a lawyer having
written such a letter and punishment lesser than debarring him
permanently cannot be imposed. The exercise of power of review
does not empower a Disciplinary Committee to modify the earlier
order passed by another Disciplinary Committee taking a different
view of the same set of facts.
The respondent was indeed guilty of a serious misconduct by writing
to his client the letter as aforesaid. Members of the legal profession
are officers of the court. Besides courts, they also owe a duty to the
society which has a vital public interest in the due administration of
justice. The said public interest is required to be protected by those on
whom the power has been entrusted to take disciplinary action. The
disciplinary bodies are guardians of the due administration of justice.
They have requisite power and rather a duty while supervising the
conduct of the members of the legal profession, to inflict appropriate
penalty when members are found to be guilty of misconduct.
Considering the nature of the misconduct, the penalty of permanent
debarment had been imposed on the respondent which without any
valid ground has been modified in exercise of power of review. It is
the duty of the bar councils to ensure that lawyers adhere to the
required standards and on failure, to take appropriate action against
them. The credibility of a council including its disciplinary body in
respect of any profession whether it is law, medicine, accountancy or
any other vocation depends upon how they deal with cases of
delinquency involving serious misconduct which has a tendency to
erode the credibility and reputation of the said profession. The
punishment, of course, has to be commensurate with the gravity of the
misconduct.

In the present case, the earlier order considering all relevant aspects
directed expulsion of respondent from profession which order could
not be lightly modified while deciding a review petition. It is evident
that the earlier Committee, on consideration of all relevant facts, came
to the conclusion that the advocate was not worthy of remaining in the
profession. The age factor and the factor of number of years put in by
the respondent were taken into consideration by the Committee when
removal from the roll of the State Council was directed. It is evident
that the Bar Council considered that a high standard of morality is
required from lawyers more so from a person who has put in 50 years
in profession. One expects from such a person a very high standard of
morality and unimpeachable sense of legal and ethical propriety.
Since the Bar Councils under the Advocates Act have been entrusted
with the duty of guarding the professional ethics, they have to be
more sensitive to the potential disrepute on account of action of a few
 black sheeps which may shake the credibility of the profession and
thereby put at stake other members of the bar. Considering these
factors, Bar Council had inflicted in its earlier order the condign
penalty. Under these circumstances, we have no hesitation in setting
aside the impugned order dated 4th June, 2000 and restoring the
original order of Bar Council of India dated 31st July, 1999.

The appeal is thus allowed in the above terms with costs quantified at
Rs.10,000/-.

[K.T.Thomas] [Y.K.Sabharwal] July 26, 2001

16.  Moving application before any court or authority before informing

that a similar application has been presented before any authority or
rejected by any authority.
17.  An exclusively retained pleader accepting a case against the client
from the opposite party.
18.  Failure to appear in the proceedings of a case without any sufficient
reason. Non – appearance of the counsel in the case is professional
misconduct. For withdrawal notice to the client be given. G. Sridher
& Anr. v. State of A.P. 2005(2) RCR(Cri.) 116 A.P.
G. Sridhar And Anr. vs State Of A.P. on 19 November, 2004
Equivalent citations: 2005 CriLJ 1292
Author: C Somayajulu
Bench: C Somayajulu

ORDER C.Y. Somayajulu, J.

1. Petitioners who are taking trial for an offence under Section 376 of
I. P. C. engaged a counsel. The casual way in which the counsel for
petitioners conducted the proceedings before the Sessions Court
should not only be frowned at, but should also be deprecated, for the
reasons to be mentioned below.
2. During the course of trial, the learned counsel for the petitioners in
the trial Court filed Cri. M. P. Mo. 89 of 2004 for recalling P. W. 1 on
the ground that some important questions have to be put to her. That
petition was dismissed by the learned trial Judge. Aggrieved thereby,
petitioners preferred a revision to this Court in Criminal Revision
Petition No. 1032 of 2004, which was dismissed by a learned Judge of
this Court on 29-6-2004. The trial went on and the other witnesses for
prosecution were examined. Thereafter since the counsel for the
petitioners in the trial Court seems to have given up the brief during
the course of trial, petitioners engaged another counsel and filed Crl.
M. P. No. 424 of 2004 for recalling PWs. 5, 8 and 10 for cross
-examination, on the ground that those witnesses were not cross-
examined by their previous counsel. By the impugned order, the
learned trial Judge dismissed the said petition on the ground that
cross-examination pf P. Ws. 5, 8 and 10 was recorded as nil, and since
there are no justifiable grounds to recall those witnesses : Hence this
petition.

3. The contention of the learned counsel for the petitioners is that

since the earlier counsel for the petitioners in the trial Court was
absent when P. Ws. 5, 8 and 10 were examined petitioners could not
cross examine those witnesses and that counsel for the petitioners in
the trial Court, for reasons known to him only, refused to appear for
the petitioners and wanted them to engage another counsel, and so
they had to change another counsel, and filed the petition to recall P.
Ws. 5, 8 and 10, and since petitioners would be put irreparable loss if
those witnesses are not cross-examined, an opportunity may be given
to the petitioners to cross-examine P. Ws. 5, 8 and 10 by recalling
them.

4. The learned counsel who earlier appeared for the petitioners, and
chose to remain absent when the case is posted for trial, and who
seems to have given up the brief in the middle to the dismay of the
petitioners, obviously had failed to keep in view not only Rule 12 of
the Rules framed by the Bar Council under 49 (1)(c) of the Advocates
Act, 1961, which reads as follows :--
"An Advocate shall not ordinarily withdraw from engagements once
accepted, with sufficient cause and unless reasonable and sufficient
notice is given to the client. Upon his withdrawal from a case, he shall
refund such part of the fee as has not been earned." but seems to have
overlooked the observation of a Division Bench of this Court in P.
Satyanarayana v. State of A.P., , reading "When an Advocate files
appearance, he/she is expected to be present during the trial of the
case and discharge his/her functions in the best interest of justice.
Otherwise, the Advocate's non-appearance amounts to professional
misconduct."

and also seems to be oblivious of Rule 90 of the Criminal Rules of

Practice & Circular Orders, 1990, which says that Sessions work
should usually be given preference over civil work and should never
be unnecessarily interrupted. I am constrained to assume that the
learned counsel for the petitioners in the trial Court was not aware of
Rule 9(2) of the Rules dated 5-7-1972 made by this High Court
under Section 34(1) of the Advocates Act, 1961, which reads as
follows :--

"In criminal cases, the appointment of an advocate, unless otherwise

limited, shall be deemed to be in force until determined with the leave
of the Court by writing signed by the party or the advocate, as the
case may be and filed in Court, or until the party or the advocate dies,
or until all the proceedings in the case are ended so far as regards the
party".

(Underlining mine) and that the above Rules framed by the Bar
Council and the High Court under the Advocates Act, 1961, and the
Criminal Rules of Practice, are meant to be followed in practice, but
not in breach. In view of the above quoted Rules, it is clear that an
Advocate who appears for an accused in a sessions case owes a duty
not only to his client, but also to the Court in cooperating with the
smooth progress of the trial of the case. His either being absent from
Court during the course of trial or withdrawing from the case
abruptly, that too without seeking leave of the Court, is highly
objectionable and is against all the cannons of professional discipline
and conduct because in sessions cases trial schedule would be given
in well advance. The parties and their counsel know which witness
would be examined on what date, well in advance. So there can be no
justifiable reason for the counsel for the accused seeking adjournment
for cross-examining the witnesses for prosecution, scheduled to be
examined on a particular day. Time and again this Court and the Apex
Court held that, witnesses should be examined when they attend Court
and are not to be harassed by asking them to attend Court again and
again to give evidence, because unlike parties they have no personal
interest in the case. They come to assist the Court in deciding the
case. They will have their own profession or avocation. Why should
they leave their profession or avocation and come to Court again and
again to suit the convenience of the counsel who chose to be absent in
Court for no justifiable reason when the date for their examination
was fixed well in advance? Court and witnesses cannot be put to
inconvenience by asking them to change their schedule, to suit the
convenience of the counsel for the accused, who, unethically chose to
be absent from the Court, without any valid reason. A dutiful counsel
would make alternate arrangement for the smooth conduct of the case
even in his absence.

5. The learned counsel for petitioners states that the earlier counsel for
the petitioners in the trial Court did not appear in the Court because
petitioners did not pay the fees demanded by him on that date. I am
constrained to observe that that fact cannot be a valid reason or
ground for a counsel for the accused being absent from Court in a
part-heard sessions case. Settling of fees by the advocate should be
done before filing of the memo of appearance for the accused. After
filing of the memo of appearance, and when the case became part
heard, counsel for accused cannot either vanish or withdraw from the
case on the ground that he was not paid the fees, that too without the
leave of Court: in view of Rule 9(2) of the Rules framed by this High
Court under Section 34(1) of the Advocates Act, 1961 extracted
above. Had the earlier counsel for the petitioners in the trial Court not
filed his memo of appearance, the Court would have appointed a State
brief for the petitioners.
 6. From a perusal of the evidence of P. W. 5 it is seen that the counsel
for the petitioners reported that there is no cross-examination. So I see
no grounds to recall P. W. 5.

7. In respect of P. Ws. 8 and 10 the endorsement in their depositions

is "counsel for the accused is not present. Hence cross examination
recorded to be nil". P. W. 8 is a Civil Assistant Surgeon and P. W. 10
is said to be a businessman. For no fault of theirs they would have to
come back to Court for the purpose of cross-examination by the
counsel for petitioners, just because their earlier counsel in the trial
Court chose to remain absent from Court for no valid reason. More
with a view to make the legal profession being made aware of the
consequences that may ensue if the counsel for an accused in sessions
case, that too in a part-heard sessions case, is absent in Court when
the case is posted for trial or continuation of the trial, and with a view
to avoid prejudice being caused to the petitioners, P. Ws. 8 and 10 can
be ordered to be recalled subject the petitioners paying heavy costs to
the State, which they can recover from their earlier counsel, and their
paying process and batta payable to them.

8. In the result prayer of the petitioners to recall of P. W. 5 is

dismissed. On condition of the petitioners depositing Rs. 15,000/- into
the trial Court as costs to the State and on their depositing process and
batta to P. Ws. 8 and 10, the petition for recall of P. Ws. 8 and 10
stands allowed. In default, of deposit of Rs. 15,000/- and /or process
and batta to P. Ws. 8 and 10 this petition stands dismissed in toto.
Petitioners are entitled to recover the amounts deposited by them from
their earlier counsel in the trial Court.

9. The Criminal Petition is ordered accordingly.

19.  Retaining the judgment of the trial court with the intention of getting
himself getting himself engaged in appeal. Retention of files of the
clients for non-payment of dues by the client is misconduct on the
part of the advocate R.D. Saxena v. Balram Prasad Sharma, JT
2000 (9) (SC) 432: AIR 2000 SC 2912.
R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000
Author: Thomas
Bench: K.T.Thomas
PETITIONER:
R.D. SAXENA

Vs.

RESPONDENT:
BALRAM PRASAD SHARMA

DATE OF JUDGMENT: 22/08/2000

BENCH:
K.T.Thomas

JUDGMENT:

THOMAS, J.

The main issue posed in this appeal has sequential importance for
members of the legal profession. The issue is this: Has the advocate a
lien for his fees on the litigation papers entrusted to him by his client?
In this case the Bar Council of India, without deciding the above
crucial issue, has chosen to impose punishment on a delinquent
advocate debarring him from practicing for a period of 18 months and
a fine of Rs.1000/-. The advocate concerned was further directed to
return all the case bundles which he got from his client respondent
without any delay. This appeal is filed by the said advocate
under Section 38 of the Advocates Act, 1961.

As the question involved in this appeal has topical importance for the
legal profession we heard learned counsel at length. To appreciate the
contentions we would present the factual backdrop as under:
Appellant, now a septuagenarian, has been practicing as an advocate
mostly in the courts at Bhopal, after enrolling himself as a legal
practitioner with the State Bar Council of Madha Pradesh. According
to him, he was appointed as legal advisor to the Madhya Pradesh State
Co- operative Bank Ltd. (Bank, for short) in 1990 and the Bank
continued to retain him in that capacity during the succeeding years.
He was also engaged by the said Bank to conduct cases in which the
Bank was a party. However, the said retainership did not last long. On
17.7.1993 the Bank terminated the retainership of the appellant and
requested him to return all the case files relating to the Bank. Instead
of returning the files the appellant forwarded a consolidated bill to the
Bank showing an amount of Rs.97,100/- as the balance payable by the
Bank towards the legal remuneration to which he is entitled. He
informed the Bank that the files would be returned only after setting
his dues.

Correspondence went on between the appellant and the Bank

regarding the amount, if any, payable to the appellant as the balance
due to him. Respondent Bank disclaimed any liability outstanding
from them to the appellant. The dispute remained unresolved and the
case bundles never passed from appellants hands. As the cases were
pending the Bank was anxious to have the files for continuing the
proceedings before the courts/tribunals concerned. At the same time
the Bank was not disposed to capitulate to the terms dictated by the
appellant which they regarded as grossly unreasonable. A complaint
was hence filed by the Managing Director of the Bank, before the
State Bar Council (Madhya Pradesh) on 3.2.1994. It was alleged in
the complaint that appellant is guilty of professional misconduct by
not returning the files to his client.

In the reply which the appellant submitted before the Bar Council he
admitted that the files were not returned but claimed that he has a
right to retain such files by exercising his right of lien and offered to
return the files as soon as payment is made to him.

The complaint was then forwarded to the Disciplinary Committee of

the District Bar Council. The State Bar Council failed to dispose of
the complaint even after the expiry of one year. So under Section 36-
B of the Advocates Act the proceedings stood transferred to the Bar
Council of India. After holding inquiry the Disciplinary Committee of
the Bar Council of India reached the conclusion that appellant is
guilty of professional misconduct. The Disciplinary Committee has
stated the following in the impugned order:

On the basis of the complaint as well as the documents available on

record we are of the opinion that the Respondent is guilty of
professional misconduct and thereby he is liable for punishment. The
complainant is a public institution. It was the duty of the Respondent
to return the briefs to the Bank and also to appear before the
committee to revert his allegations made in application dated 8.11.95.
No such attempt was made by him.

In this appeal learned counsel for the appellant contended that the
failure of the Bar Council of India to consider the singular defence set
up by the appellant i.e. he has a lien over the files for his unpaid fees
due to him, has resulted in miscarriage of justice. The Bank contended
that there was no fee payable to the appellant and the amount shown
by him was on account of inflating the fees. Alternatively, the
respondent contended that an advocate cannot retain the files after the
client terminated his engagement and that there is no lien on such
files.

We would first examine whether an advocate has lien on the files

entrusted to him by the client. Learned counsel for the appellant
endeavoured to base his contention on Section 171 of the Indian
Contract Act which reads thus:

Bankers, factors, wharfingers, attorneys of a High Court and policy-

brokers may, in the absence of a contract to the contrary, retain, as a
security for a general balance of account, any goods bailed to them;
but no other persons have a right to retain, as a security for such
balance, goods bailed to them, unless there is an express contract to
that effect.

Files containing copies of the records (perhaps some original

documents also) cannot be equated with the goods referred to in the
section. The advocate keeping the files cannot amount to goods
bailed. The word bailment is defined in Section 148 of the Contract
Act as the delivery of goods by one person to another for some
purpose, upon a contract that they shall be returned or otherwise
disposed of according to the directions of the person delivering them,
when the purpose is accomplished. In the case of litigation papers in
the hands of the advocate there is neither delivery of goods nor any
contract that they shall be returned or otherwise disposed of. That
apart, the word goods mentioned in Section 171 is to be understood in
the sense in which that word is defined in the Sale of Goods Act. It
must be remembered that Chapter-VII of the Contract Act,
comprising sections 76 to 123, had been wholly replaced by the Sales
of Goods Act, 1930. The word goods is defined in Section 2(7) of the
Sales of Goods Act as every kind of movable property other than
actionable claims and money; and includes stock and shares, growing
crops, grass, and things attached, to or forming part of the land which
are agreed to be severed before sale or under the contract of sale.

Thus understood goods to fall within the purview of Section 171 of

the Contract Act should have marketability and the person to whom it
is bailed should be in a position to dispose it of in consideration of
money. In other words the goods referred to in Section 171 of the
Contract Act are saleable goods. There is no scope for converting the
case files into money, nor can they be sold to any third party. Hence,
the reliance placed on Section 171 of the Contract Act has no merit.

In England the solicitor had a right to retain any deed, paper or chattel
which has come into his possession during the course of his
employment. It was the position in common law and it later
recognized as the solicitors right under Solicitors Act, 1860. In
Halsburys Laws of England, it is stated thus (vide paragraph 226 in
volume 44): 226. Solicitors rights. At common law a solicitor has two
rights which are termed liens. The first is a right to retain property
already in his possession until he is paid costs due to him in his
professional capacity, and the second is a right to ask the court to
direct that personal property recovered under a judgment obtained by
his exertions stand as security for his costs of such recovery. In
addition, a solicitor has by statute a right to apply to the court for a
charging order on property recovered or preserved through his
instrumentality in respect of his taxed costs of the suit, matter or
proceeding prosecuted or defended by him.

Before India attained independence different High Courts in India had

adopted different views regarding the question whether an advocate
has a lien over the litigation files kept with him. In P.
Krishnamachariar vs. The Official Assignee of Madras, (AIR 1932
Madras 256) a Division Bench held that an advocate could not have
such a lien unless there was an express agreement to the contrary. The
Division Bench has distinguished an earlier decision of the Bombay
High Court in Tyabji Dayabhai & Co. vs. Jetha Devji & Co. (AIR
1927 Bombay 542) wherein the English law relating to the solicitors
lien was followed. Subsequently, a Full Bench of the Madras High
Court in 1943 followed the decision of the Division Bench. A Full
Bench of the Patna High Court in In re B.N. Advocate in the matter of
Misc. Judl. Case No.18/33 (AIR 1933 Pat 571) held the view that an
advocate could not claim a right to retain the certified copy of the
judgment obtained by him on the premise that an appeal was to be
filed against it. Of course the Bench said that if the client had
specifically instructed him to do so it is open to him to keep it.

After independence the position would have continued until the

enactment of the Advocates Act 1961 which has repealed a host of
enactments including Indian Bar Council Act. When the new Bar
Council of India came into existence it framed Rules called the Bar
Council of India Rules as empowered by the Advocates Act. Such
Rules contain provision specifically prohibiting an advocate from
adjusting the fees payable to him by a client against his own personal
liability to the client. As a rule an Advocate shall not do anything
whereby he abuses or takes advantage of the confidence reposed in
him by his client,(vide Rule

24). In this context a reference can be made to Rules 28 and 29 which

are extracted below:

28. After the termination of the proceeding, the Advocate shall be at

liberty to appropriate towards the settled fee due to him, any sum
remaining unexpended out of the amount paid or sent to him for
expenses, or any amount that has come into his hands in that
proceeding.

29. Where the fee has been left unsettled, the Advocate shall be
entitled to deduct, out of any moneys of the client remaining in his
hands, at the termination of the proceeding for which he had been
engaged, the fee payable under the rules of the Court, in force for the
time being, or by then settled and the balance, if any, shall be
refunded to the client.

Thus, even after providing a right for an advocate to deduct the fees
out of any money of the client remaining in his hand at the
termination of the proceeding for which the advocate was engaged, it
is important to notice that no lien is provided on the litigation files
kept with him. In the conditions prevailing in India with lots of
illiterate people among the litigant public it may not be advisable also
to permit the counsel to retain the case bundle for the fees claimed by
him. Any such lien if permitted would become susceptible to great
abuses and exploitation.

There is yet another reason which dissuades us from giving approval

to any such lien. We are sure that nobody would dispute the
proposition that the cause in a court/tribunal is far more important for
all concerned than the right of the legal practitioner for his
remuneration in respect of the services rendered for espousing the
cause on behalf of the litigant. If a need arises for the litigant to
change his counsel pendente lite, that which is more important should
have its even course flowed unimpeded. Retention of records for the
unpaid remuneration of the advocate would impede such course and
the cause pending judicial disposal would be badly impaired. If a
medical practitioner is allowed a legal right to withhold the papers
relating to the treatment of his patient which he thus far administered
to him for securing the unpaid bill, that would lead to dangerous
consequences for the uncured patient who is wanting to change his
doctor. Perhaps the said illustration may be an over-statement as a
necessary corollary for approving the lien claimed by the legal
practitioner. Yet the illustration is not too far-fetched. No professional
can be given the right to withhold the returnable records relating to
the work done by him with his clients matter on the strength of any
claim for unpaid remuneration. The alternative is that the professional
concerned can resort to other legal remedies for such unpaid
remuneration.

A litigant must have the freedom to change his advocate when he

feels that the advocate engaged by him is not capable of espousing his
cause efficiently or that his conduct is prejudicial to the interest
involved in the lis, or for any other reason. For whatever reason, if a
client does not want to continue the engagement of a particular
advocate it would be a professional requirement consistent with the
dignity of the profession that he should return the brief to the client. It
is time to hold that such obligation is not only a legal duty but a moral
imperative.

In civil cases, the appointment of an advocate by a party would be

deemed to be in force until it is determined with the leave of the court,
(vide order 3, Rule 4(1) of the Code of Civil Procedure). In criminal
cases, every person accused of an offence has the right to consult and
be defended by a legal practitioner of his choice which is now made a
fundamental right under Article 22(1) of the Constitution. The said
right is absolute in itself and it does not depend on other laws. In this
context reference can be made to the decision of this Court in State of
Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The
words of his choice in Article 22(1) indicate that the right of the
accused to change an advocate whom he once engaged in the same
case, cannot be whittled down by that advocate by withholding the
case bundle on the premise that he has to get the fees for the services
already rendered to the client.

If a party terminates the engagement of an advocate before the

culmination of the proceedings that party must have the entire file
with him to engage another advocate. But if the advocate who is
changed midway adopts the stand that he would not return the file
until the fees claimed by him is paid, the situation perhaps may turn to
dangerous proportion. There may be cases when a party has no
resource to pay the huge amount claimed by the advocate as his
remuneration. A party in a litigation may have a version that he has
already paid the legitimate fee to the advocate. At any rate if the
litigation is pending the party has the right to get the papers from the
advocate whom he has changed so that the new counsel can be briefed
by him effectively. In either case it is impermissible for the erstwhile
counsel to retain the case bundle on the premise that fees is yet to be
paid.

Even if there is no lien on the litigation papers of his client an

advocate is not without remedies to realise the fee which he is
legitimately entitled to. But if he has a duty to return the files to his
client on being discharged the litigant too has a right to have the files
returned to him, more so when the remaining part of the lis has to be
fought in the court. This right of the litigant is to be read as the
corresponding counterpart of the professional duty of the advocate.

Misconduct envisaged in Section 35 of the Advocates Act is not

defined. The section uses the expression misconduct, professional or
otherwise. The word misconduct is a relative term. It has to be
considered with reference to the subject matter and the context
wherein such term occurs. It literally means wrong conduct or
improper conduct.

Corpus Juris Secundum, contains the following passage at page 740

(vol.7):

Professional misconduct may consist in betraying the confidence of a

client, in attempting by any means to practise a fraud or impose on or
deceive the court or the adverse party or his counsel, and in fact in
any conduct which tends to bring reproach on the legal profession or
to alienate the favourable opinion which the public should entertain
concerning it.

The expression professional misconduct was attempted to be defined

by Darling, J., in In re A Solicitor ex parte the Law Society [(1912) 1
KB 302] in the following terms: It it is shown that an Advocate in the
pursuit of his profession has done something with regard to it which
would be reasonably regarded as disgraceful or dishonourable by his
professional brethren of good repute and competency, then it is open
to say that he is guilty of professional misconduct.
 In this context it is to be mentioned that the aforesaid definition
secured approval by the Privy Council in George Frier Grahame vs.
Attorney-General, Fiji,(1936 PC

224). We are also inclined to take that wide canvass for understanding
the import of the expression misconduct in the context in which it is
referred to in Section 35 of the Advocates Act.

We, therefore, that the refusal to return the files to the client when he
demanded the same amounted to misconduct under Section 35 of the
Act. Hence, the appellant in the present case is liable to punishment
for such misconduct.

However, regarding the quantum of punishment we are disposed to

take into account two broad aspects: (1) this court has not
pronounced, so far, on the question whether advocate has a lien on the
files for his fees. (2) the appellant would have bona fide believed, in
the light of decisions of certain High Courts, that he did have a lien.
In such circumstances it is not necessary to inflict a harsh punishment
on the appellant. A reprimand would be sufficient in the interest of
justice on the special facts of this case.

We, therefore, alter the punishment to one of reprimanding the

appellant. However, we make it clear that if any advocate commits
this type of professional misconduct in future he would be liable to
such quantum of punishment as the Bar Council will determine and
the lesser punishment imposed now need not be counted as a
precedent.

Appeal is disposed of accordingly.

20.  Presenting the plaint with insufficient court fee stamp, when the
client has given money for the court fee.
21.  Alleging partiality against presiding officer in open court.
22.  Tampering with records and documents.
23.  Writing letters to persons for soliciting cases.
24.  Reporting no instructions from his client and subsequently
appearing for the opposite party in the same suit.
25.  Advertising about his profession.
26.  Taking advantage of the ignorance and illiteracy of the clients,
demanding money from them on false representations that is required
for court purposes and misappropriating the same.
27.  Misappropriation of decreed amount payable to the client.
28.  Giving wrong advice to the client.
29.  Taking money from the client for the purpose of giving bribe.
30.  Suppression of truth.
31.  Changing sides.
32.  Indecent cross examination.
33.  Committing contempt of court.
34.  False identifications of deponents.
35.  Gross negligence involving moral turpitude.
36.  Appearing without authority ie. On forged vakalath.
37.  Failure to attend the trial.
38.  Attesting forged affidavit.
39.  Abstaining from appearing in court on the ground of strike called by
the Bar association. Advocates Act- Strike by the advocates is illegal
and unconstitutional. Client can sue for the damages due to the non-
appearance of the advocate. Raman Services Pvt. Ltd. v. Subhash
Kapoor, 2001 SCCC (Cri.) 3: JT 2000 (Suppl.2) (SC) 546: AIR
200 SC 207; Ex. Capt. Harish Uppal v. U.O.I, JT 2002 (10) (SC)
310 Const. Bench.

Ramon Services Pvt. Ltd vs Subhash Kapoor And Others on 14

November, 2000
Author: Sethi
Bench: S.P.Sethi
CASE NO.:
Appeal (civil) 6385 2000

PETITIONER:
RAMON SERVICES PVT. LTD.

Vs.

RESPONDENT:
SUBHASH KAPOOR AND OTHERS

DATE OF JUDGMENT: 14/11/2000

BENCH:
S.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T
SETHI,J.

I agree both with the reasonings and the conclusions arrived at by

Thomas, J. in his lucid judgment. However, the matter being
important having far reaching effects on the institution of the
judiciary, and for my views with respect to the role of the Courts
during strikes by Advocates, I have opted to pen down my own
observations in addition. Persons belonging to the legal profession are
concededly the elite of the society. They have always been in the
vanguard of progress and development of not only law but the Polity
as a whole. Citizenary looks at them with hope and expectations for
traversing on the new paths and virgin fields to be marched on by the
society. The profession by and large, till date has undoubtedly
performed its duties and obligations and has never hesitated to
shoulder its responsibilities in larger interests of the mankind. The
lawyers, who have been acknowledged being sober, task oriented,
professionally responsible stratum of the population, are further
obliged to utilise their skills for socio-political modernization of the
country. The lawyers are a force for the preservance and
strengthening of constitutional government as they are guardians of
the modern legal system. After independence the concept of social
justice has become a part of our legal system. This concept gives
meaning and significance to the democratic ways of life and of
making the life dynamic. The concept of welfare state would remain
in oblivion unless social justice is dispensed with. Dispensation of
social justice and achieving the goals set forth in the constitution are
not possible without the active, concerted and dynamic efforts made
by the person concerned with the justice dispensation system. The
prevailing ailing socio- economic-political system in the country
needs treatment which can immediately be provided by judicial
incision. Such a surgery is impossible to be performed unless the
Bench and the Bar make concerted effort. The role of the members of
the Bar has thus assumed great importance in the post independent era
in the country. Generally strikes are antithesis of the progress,
prosperity and development. Strikes by the professionals including the
Advocates cannot be equated with strikes undertaken by the industrial
workers in accordance with the statutory provisions. The services
rendered by the advocates to their clients are regulated by a contract
between the two besides statutory limitations, restrictions and
guidelines incorporated in the Advocates Act, the Rules made
thereunder and Rules of procedure adopted by the Supreme Court and
the High Courts. Abstaining from the courts by the Advocates, by and
large, does not only affect the persons belonging to the legal
profession but also hampers the process of justice sometimes urgently
needed by the consumers of justice, the litigants. Legal profession is
essentially a service oriented profession. The relationship between the
lawyer and his client is one of trust and confidence. With the strike by
the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provisions of
the Advocates Act. Law is no trade and briefs of the litigants not
merchandise. This Court in The Bar Council of Maharashtra v. M.V.
Dabholkar & Ors. [1976 (2) SCC 291] placed on record its
expectations from the Bar and observed: "We wish to put beyond
cavil the new call to the lawyer in the economic order. In the days
ahead, legal aid to the poor and the weak, public interest litigation and
other rule-of-law responsibilities will demand a whole new range of
responses from the Bar or organised social groups with lawyer
members. Indeed, the hope of democracy is the dynamism of the new
frontiersmen of the law in this developing area and what we have
observed against solicitation and alleged profit-making vices are
distant from such free service to the community in the jural sector as
part of the profession's tryst with the People of India."

In Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra

Bombay & Others [1984 (2) SCC 556] it was observed that, "An
advocate stands in a loco parentis towards the litigants. Therefore, he
is expected to follow norms of professional ethics and try to protect
the interests of his client in relation to whom he occupies a position of
trust. Counsel's paramount duty is to the client. The client is entitled
to receive disinterested, sincere and honest treatment". It would be
against professional etiquette of a lawyer to deprive his client of his
services in the court on account of strike. No advocate can take it for
granted that he will appear in the court according to his whim or
convenience. It would be against professional ethics for a lawyer to
abstain from the court when the cause of his client is called for
hearing or further proceedings. This Court in Tahil Ram Issardas
Sadarangani & Ors. v. Ramchand Issardas Sadarangani & Anr. [1993
Supp. (3) SCC 256] while deprecating the decreasing trend of service
element and increasing trend of commercialisation of legal profession,
pointed out that it was for the members of the Bar to act and take
positive steps to remove such an impression before it is too late. By
striking work, the lawyers fail in their contractual and professional
duty to conduct the cases for which they are engaged and paid. In
Common Cause, A Regd. Society v. Union of India & Ors. [1994 (5)
SCC 557 it was observed, "Since litigants have a fundamental right to
speedy justice as observed in Hussainara Khatoon v. Home Secy.,
State of Bihar [1980 (1) SCC 81] it is essential that cases must
proceed when they appear on board and should not ordinarily be
adjourned on account of the absence of the lawyers unless there are
cogent reasons to do so. If cases get adjourned time and again due to
cessation of work by lawyers it will in the end result in erosion of
faith in the justice delivery system which will harm the image and
dignity of the Court as well". Noting casual and indifferent attitude of
some of the lawyers and expecting improvement in quality of service
this Court in In Re: Sanjiv Datta, Deputy Secretary, Ministry of
Information & BroadCasting, New Delhi, etc. [1995 (3) SCC 619
held: "Of late, we have been coming across several instances which
can only be described as unfortunate both for the legal profession and
the administration of justice. It becomes, therefore, our duty to bring
it to the notice of the members of the profession that it is in their
hands to improve the quality of the service they render both to the
litigant-public and to the courts, and to brighten their image in the
society. Some members of the profession have been adopting
perceptibly casual approach to the practice of the profession as is
evident from their absence when the matters are called out, the filing
of incomplete and inaccurate pleadings - many time even illegible and
without personal check and verification, the non-payment of court
fees and process fees, the failure to remove office objections, the
failure to take steps to serve the parties, et al. They do not realise the
seriousness of these acts and omissions. They not only amount to the
contempt of the court but do positive disservice to the litigants and
create embarrassing situation in the court leading to avoidable
unpleasantness and delay in the disposal of matters. This augurs ill for
the health of our judicial system.

The legal profession is a solemn and serious occupation. It is a noble

calling and all those who belong to it are its honourable members.
Although the entry to the profession can be had by acquiring merely
the qualification of technical competence, the honour as a professional
has to be maintained by its members by their exemplary conduct both
in and outside the court. The legal profession is different from other
professions in that what the lawyers do, affects not only an individual
but the administration of justice which is the foundation of the
civilised society. Both as a leading member of the intelligentsia of the
society and as a responsible citizen, the lawyer has to conduct himself
as a model for others both in his professional and in his private and
public life. The society has a right to expect of him such ideal
behaviour. It must not be forgotten that the legal profession has
always been held in high esteem and its members have played an
enviable role in public life. The regard for the legal and judicial
systems in this country is in no small measure due to the tireless role
played by the stalwarts in the profession to strengthen them. They
took their profession seriously and practised it with dignity, deference
and devotion. If the profession is to survive, the judicial system has to
be vitalised. No service will be too small in making the system
efficient, effective and credible. The casualness and indifference with
which some members practise the profession are certainly not
calculated to achieve that purpose or to enhance the prestige either of
the profession or of the institution they are serving. If people lose
confidence in the profession on account of the deviant ways of some
of its members, it is not only the profession which will suffer but also
the administration of justice as a whole. The present trend unless
checked is likely to lead to a stage when the system will be found
wrecked from within before it is wrecked from outside. It is for the
members of the profession to introspect and take the corrective steps
in time and also spare the courts the unpleasant duty. We say no
more."

In Brahma Prakash Sharma v. State of U.P. [1953 SCR 1169] a

Constitution Bench of this Court held that a resolution passed by the
Bar Association expressing want of confidence in the judicial officers
amounted to scandalising the court to undermine its authority which
amounted to contempt of court. In Tarini Mohan Barari, Re: [AIR
1923 Cal. 212] the Full Bench of the High Court held that pleaders
deliberately abstaining from attending the court and taking part in a
concerted movement to boycott the court, was a course of conduct
held not justified. The pleaders had duties and obligations to their
clients in respect of matters entrusted to them which were pending in
the courts. They had duty and obligation to cooperate with the court in
the orderly administration of justice. Boycotting the court was held to
be high handed and unjustified. In Pleader, Re: [AIR 1924 Rang 320]
a Division Bench of the High Court held that a pleader abstaining
from appearing in the court without obtaining his client's consent and
leaving him undefended, amounted to unprofessional conduct. In U.P.
Sales Tax Service Association v. Taxation Bar Association, Agra &
others [1995 (5) SCC 716] this Court observed: "It has been a
frequent spectacle in the recent past to witness that advocates strike
work and boycott the courts at the slightest provocation overlooking
the harm caused to the judicial system in general and the litigant
public in particular and to themselves in the estimate of the general
public. An advocate is an officer of the court and enjoys a special
status in the society. The workers in furtherance of collective
bargaining organise strike as per the provisions of the Industrial
Disputes Act as a last resort to compel the management to concede
their legitimate demands.

It is not necessary to go into the question whether the advocates, like

workmen, have any right at all to go on strike or boycott court. In
Federal Trade Commission v. Superior Court Trial Lawyers' Assn.
493 US 411the attorneys who regularly accepted court appointments
to represent indigent defendants in minor felony and misdemenaour
cases before the District of Columbia Superior Court sought an
increase in the statutorily fixed fees they were paid for the work they
had done. When their lobbying efforts to get increase in the fees
failed, all the attorneys, as a group, agreed among themselves that
they would not accept any new cases after a certain date, if the
District of Columbia had not passed legislation providing for an
increase in their fees. The Trial Lawyers' Association to which the
attorneys belonged supported and publicised their agreement. When
they are not accepting the briefs which affected the District's criminal
justice system, the Federal Trade Commission (FTC) filed a
complaint against the Trial Lawyers' Association complaining that
they had entered into a conspiracy to fix prices and go in for a boycott
which was an unfair method of competition violating Section 5 of the
Federal Trade Commission Act (15 USCS 45). The administrative
law judge rejected various defences of the Association and
recommended that the complaint to browbeat the boycott be
dismissed. The Court of Appeals for the District of Columbia reserved
the FTC order holding that the attorneys are protected by Federal
Constitution's First Amendment etc. On certiorari, majority of USA
Supreme Court speaking through Stevens, J. held that the lawyers had
no protection of the First Amendment (free speech) and the action of
the group of attorneys to boycott the courts constituted restraint of
trade within the meaning of Section 1 of Shreman Act against unfair
method of competition. Though the object was enactment of a
favourable legislation, the boycott was the means by which the
attorneys sought to obtain favourable legislation. The Federal
Constitution's First Amendment does not protect them."

In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [1999 (1) SCC
37] to which one of us (Thomas, J.) was a party observed: "Judicial
function cannot and should not be permitted to be stonewalled by
browbeating or bullying methodology, whether it is by litigants or by
counsel. Judicial process must run its even course unbridled by any
boycott call of the Bar, or tactics of filibuster adopted by any member
thereof. High Courts are duty bound to insulate judicial functionaries
within their territory from being demoralised due to such onslaughts
by giving full protection to them to discharge their duties without
fear. But unfortunately this case reflects apathy on the part of the
High Court in affording such protection to a judicial functionary who
resisted, through legal means, a pressure strategy slammed on him in
open court."

It was further held: "If any counsel does not want to appear in a
particular court, that too for justifiable reasons, professional decorum
and etiquett require him to give up his engagement in that court so
that the party can engage another counsel. But retaining the brief of
his client and at the same time abstaining from appearing in that court,
that too not on any particular day on account of some personal
inconvenience of the counsel but as a permanent feature, is
unprofessional as also unbecoming of the status of an advocate. No
court is obliged to adjourn a cause because of the strike call given by
any association of advocates or a decision to boycott the courts either
in general or any particular court. It is the solemn duty of every court
to proceed with the judicial business during court hours. No court
should yield to pressure tactics or boycott calls or any kind of
browbeating.

A three-Judge Bench of this Court has reminded members of the legal

profession in Lt.Col. S.J. Chaudhary v. State (Delhi Admn.) (1984) 1
SCC 722 that it is the duty of every advocate who accepts a brief to
attend the trial and such duty cannot be overstressed. It was further
reminded that 'having accepted the brief, he will be committing a
breach of his professional duty, if he so fails to attend'.

"A lawyer is under obligation to do nothing that shall detract from the
dignity of the court, of which he is himself a sworn officer and
assistant. He should at all times pay differential respect to the Judge,
and scrupulously observe the decorum of the courtroom."

(Warvelle's Legal Ethics, at p.182) Of course, it is not a unilateral

affair. There is a reciprocal duty for the court also to be courteous to
the members of the Bar and to make every endeavour for maintaining
and protecting the respect which members of the Bar are entitled to
have from their clients as well as from the litigant public. Both the
Bench and the Bar are the two inextricable wings of the judicial
forum and therefore the aforesaid mutual respect is the sine qua non
for the efficient functioning of the solemn work carried on in courts of
law. But that does not mean that any advocate or a group of them can
boycott the courts or any particular court and ask the court to desist
from discharging judicial functions. At any rate, no advocate can ask
the court to avoid a case on the ground that he does not want to appear
in that court."

In the light of the consistent views of the judiciary regarding the strike
by the advocates, no leniency can be shown to the defaulting party
and if the circumstances warrant to put such party back in the position
as it existed before the strike. In that event, the adversary is entitled to
be paid exemplary costs. The litigant suffering costs has a right to be
compensated by his defaulting counsel for the costs paid. In
appropriate cases the court itself can pass effective orders, for
dispensation of justice with the object of inspiring confidence of the
common man in the effectiveness of judicial system. In the instant
case respondent has to be held entitled to the payment of costs,
consequent upon the setting aside of the ex-parte order passed in his
favour. Though a matter of regret, yet it is a fact, that the courts in the
country have been contributory to the continuance of the strikes on
account of their action of sympathising with the Bar and failing to
 discharge their legal obligations obviously under the threat of public
frenzy and harassment by the striking advocates. I find myself in
agreement with the submission of Sh.M.N. Krishnamani, Senior
Advocate that the courts were sympathising with the Bar by not
agreeing to dismiss the cases for default of appearance of the striking
advocates. I have my reservations with the observations of Thomas, J.
that the courts had not been sympathising with the Bar during the
strikes or boycotts. Some courts might have conducted the cases even
during the strike or boycott periods or adjourned due to helplessness
for not being in a position to decide the lis in the absence of the
counsel but majority of the courts in the country have been impliedly
sympathisers by not rising to the occasion by taking positive stand for
the preservation of the high traditions of law and for continued
restoration of the confidence of the common man in the institution of
judiciary. It is not too late even now for the courts in the country to
rise from the slumber and perform their duties without fear or favour
particularly after the judgment of this Court in Mahabir Singh's
case(supra). Inaction will surely contribute to the erosion of ethics and
values in the legal profession. The defaulting courts may also be
contributory to the contempt of this Court.

40.  Misleading the court resulting in erroneous order.

41.  Fees charged by the advocate but suit not filed. It amounts to
misappropriation of amount. D.S. Dalal v. State Bank of India, 1993
(2) RRR 116: AIR 1993 SC 1608.

D.S. Dalal vs State Bank Of India And Ors on 18 March, 1993

Equivalent citations: 1993 AIR 1608, 1993 SCR (2) 488
Author: K Singh
Bench: Kuldip Singh (J)
PETITIONER:
D.S. DALAL
 Vs.

RESPONDENT:
STATE BANK OF INDIA AND ORS.

DATE OF JUDGMENT18/03/1993

BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
KASLIWAL, N.M. (J)

CITATION:
1993 AIR 1608 1993 SCR (2) 488
1993 SCC Supl. (3) 557 JT 1993 (2) 337
1993 SCALE (2)78

ACT:
Advocates Act, 1961 : Section 38-Appeal against order of
Disciplinary Committee of Bar Council of India-Proceedings
against Advocates-Findings-whether proper.

HEADNOTE:
Respondent-Bank lodged a complaint before the Bar Council of
Delhi against the appellant-Advocate, alleging that the
appellant and two other Advocates of the M/s. Singh and
Company, (a Firm of Advocates and solicitors) were guilty of
serious professional misconduct, as they failed to discharge
their.professional duties and responsibilities entrusted to
them.
The case of the Bank was that in 1975, the Bank engaged the
Firm to rile a recovery suit for the recovery of Rs.
6,12,164.10 from M/s. Delhi Flooring (P) Ltd. and handed
over the case-rile containing original and valuable
documents.
The Firm submitted a bill for riling the recovery suit which
included the professional fees and other miscellaneous
charges. On 15.11.1975 the Bank paid a sum of Rs. 11,475
which included 1/3rd of the professional fee and the
miscellaneous charges. It did not inform the Bank whether
the suit was filed or not.
On 5.12.1975 the Bank wrote a letter to the Firm to send a
copy of the plaint before 8.12.1975 or the Bank would be
compelled to withdraw the case from the Firm.
On 15.12.1975, one of the partner of the firm informed the
Bank the suit was filed on 15.12.1975 in the High Court.
Thereafter the Bank was kept in the dark about the fate of
the case. Hence the Bank engaged the services of one Mr.
Arora, Advocate, in order to find out as to what happened to
the suit.
On 23.1977, the Bank was informed by Mr. Arora, Advocate
that
489
suit was filed on 15.12.1975 in the High Court and on
31.1.1976, it was returned by the Original Branch to the
Registry withobjections. Mr. Arora, Advocate further
informed the Bank on 31.3.1977 that the entire suit paper
book was returned to Mr. Singh, Advocate of the Firm on
27.7.1976 for removing the object-ions and thereafter the
suit was not refiled.
The respondent-Bank, therefore, claimed before the Bar
Council of Delhi that the appellant and his associates
misappropriated the money paid to them for court fee,
miscellaneous expenses and one-third of the professional
fee.
The Disciplinary Committee of the Bar Council of Delhi
transferred the case of the Bar Council of India, as the
case was pending for more than one year.
The Bar Council of India issued notices returnable on
2.11.1980. The appellant and his associates were not present
on that date. Therefore fresh notices were issued for
20.12.1980. The appellant did not present on 20.12.1980and
ex parte proceedings were ordered. The case was posted for
23.1.1981 for the evidence of the complainant.
On 23.1.1981 the appellant moved an application for setting
aside the ex parte order dated 20.12.1980, which was allowed
and the case was adjourned to 27.2.1981. The case was
adjourned from time to time and finally fixed for evidence
on 22.8.1981. On 22.8.1981, the appellant's application for
adjournment was rejected. The evidence was concluded, ar-
guments were heard and the order was reserved.
(The complainant had given up its case against one Ms.
V.Singh, Advocate an associate of the appellant, and the Bar
Council of India did not proceed against her. One Mr.
B.Singh, Advocate the other associate of the appellant, was
also proceeded against. Notice to him was returned with the
postal endorsement "refused" and ex parte proceeding were
ordered.)
The Disciplinary Committee of the Bar Council of India held
that the case against the appellant and his associate was
provedbeyond reasonable doubt. Their names were removed
from the rolls of Advocates of the Bar Council of Delhi and
the Sanads granted to them were ordered to be withdrawn.
490
The appellant riled the appeal before this Court, while his
associate, riled a review petition before the Bar Council of
India, which was still pending. The Bar Council of India
granted him stay of the order dated 24.10.1981 in the review
proceeding.
The appellantcontended that the suit was filed by the
appellant on 15.12.11975 but the record of the suit file was
misplaced/lost by the Registry of the High Court; that by
his letter dated 20.8.1977, he informed the Bank about the
suit rile being not traceable; and that the record of the
suit was to be structured and refiled.
Dismissing the appeal, this Court,
HELD : 1.01. The letter dated August 20,1977 was not
produced, before the Bar Council of India. It has been
placed before this Court for the first time. Apart from the
ipse dixit of the appellant and Mr.B.Singh in the said
letter, there is no evidence on the record to show that the
suit rile was misplaced or lost by the High Court Registry.
On the other hand, there is cogent and reliable evidence on
the record to shows that the Delhi High Court Registry
returned back the papers to, Mr. B. Singh for removing the
objections raised by it. [494D-E]
1.02. Both the reports of Mr.R.P.Arora, Advocate have
been proved on the record of the Bar Council of India as
evidence. The Bar Council of India on appreciation of the
evidence before it came to the conclusion that the charge
against the appellant and Mr.B.Singh was proved beyond
doubt. There is no ground to interfere with the order of
the Bar Council of India. [495H, 496D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 251 of

1982. From the Judgment and Order dated 24.10.81 of the
Disciplinary Committee of the Bar Council of India, Delhi in B.C.I.T
R. Case No. 28 of 1979.

B.Singh, S.K.Gambhir and Davinder Singh for the Appellant.

R.P.Kapur and Rajiv Kapur for the Respondents. The Judgment of the
Court was delivered by KULDIP SINGH, J. D.S. Dalal was a
practising advocate in Delhi. The Bar Council of India by its order
dated October 24, 1981, removed his name from the rolls of advocates
of the Bar Council of Delhi and the sanad granted to him has been
withdrawn. This appeal under Section 30 of the Advocates Act is
against the order of the Bar Council of India.

The State Bank of India lodged a complaint before the Bar Council of
Delhi on September 4, 1978. It was alleged in the complaint that the
appellant along with two other advocates was practising under the
name and style of "M/s Singh and Company" a firm of advocates and
solicitors having their office at 2670, Subzi Mandi, Delhi. It was
alleged that the advocates were duly engaged by the Asaf Ali Road
branch of the State Bank of India to file a recovery suit against M/s
Delhi Flooring (Pvt) Ltd. for the recovery of Rs. 6,12,164.10. "Singh
and Company" (the firm) at that time was represented by Mr. D.S.
Dalal, Mr. B. Singh and Ms V.Singh, Advocates, who were the
partners of the said firm and were conducting cases for and on behalf
of the firm. It is the case of the complainant that in the year 1975, the
file relating to the case which was to be filed against m/s Delhi
Flooring (Pvt) Ltd., containing original and valuable documents, was
handed over to the Firm by the complainant. Thereafter, the Firm
submitted a bill for filing the recovery suit which included the
professional fees and other miscellaneous charges. An amount of Rs.
11,475 was paid to the Firm on November 15, 1975, for filing the suit
which included 1/3rd of the professional fee plus the miscellaneous
charges. This was acknowledged by the Firm under a receipt which
was placed on the record. Till December 19, 1975, the Firm did not
inform the bank as to whether the suit was filed and if so what was the
stage of the proceedings. The bank wrote a letter dated December 05,
1975 to the Firm asking it to send a copy of the plaint before
December 8, 1975, for signatures and verification failing which the
bank would be compelled to withdraw the case from the firm. At that
stage Mr. B. Singh, Advocate, one of the partners of the Firm, in his
letter dated December 15, 1975 informed the bank that the suit had
been filed on December 15, 1975 in the High Court of Delhi.
Thereafter, the bank appears to have received no communication from
the said advocates despite repeated reminders oral and other-,vise and
the bank was kept in the dark about the fate of the case entrusted to
the appellant and his associates.

As there was no response from the appellant, the bank engaged the
services of Mr. R.P. Arora, Advocate, in order to find out as to what
happened to the suit filed by the appellant and his associates on behalf
of the bank. Mr.R.P. Arora in his letter dated March 2, 1977,
informed the bank that the suit which had been filed on December 15,
1975 was returned by the original Branch on January 31, 1976 to the
Registry of the High Court with objections. Mr. Arora in his letter
dated March 31, 1977 further informed the bank that the entire suit
paper book had been returned to Mr. B. Singh, Advocate on July 27,
1976 for removing the objection and thereafter the suit has not been
re-filed in the Registry of the High Court of Delhi.

The complainant, therefore, claimed that the appellant and his

associates were guilty of serious professional misconduct as they
failed to discharge their professional duties and responsibilities
entrusted to them by the bank in its capacity as a client. It was further
claimed by the bank that the appellant and his associates had
misappropriated the money paid to them for court fee, miscellaneous
expenses and one third of the professional fee. The complainant
further stated that even the documents and other papers handed over
to the appellant and his associates for filing the suit were not returned.
The complainant was originally registered with the Bar Council of
Delhi. On September 19, 1979, the Disciplinary Committee of the Bar
Council of Delhi transferred the case to the Bar Council of India on
the ground that the case had been pending for more than one year.
The Bar Council of India issued notices returnable on November 2,
1980. On that date the respondents were not present and as such fresh
notices were issued for December 20, 1980. Mr. D.S. Dalal, though
served was not present on December 20, 1980 and as such ex parte
proceedings were ordered. Notice to Mr. B. Singh, Advocate was
returned with the postal endorsement "refused". He was also ordered
to be proceeded ex parte. The case was posted for January 23, 1981
for the evidence of the complainant. On that day the appellant moved
an application for setting aside the ex parte order dated December 20,
1980. The ex parte order was set aside conditionally permitting the
appellant to participate in the proceedings and the case was adjourned
to February 27, 1981. On February 27, 1981, three witnesses were
examined in the presence of the appellant and he cross-examined
them. Thereafter the case was adjourned from time to time and finally
fixed for evidence on August 22, 1981. The appellant again sent an
application for adjournment which was rejected. The evidence was
con-

cluded, arguments were heard and the order reserved. The Bar
Council of India in the impugned order observed as under :-
"From a perusal of the order sheet of the Disciplinary Committee of
the Bar Council of Delhi and also of the order sheet before us, it
reveals that the respondents have throughout adopted the tactics of
non- cooperation purposely with a view to protract the proceedings
unnecessarily'.

It may be mentioned that the complainant had given up its case

against Ms. V. Singh, Advocate and as such the Bar Council of India
ultimately did not proceed against her. So far as Mr. B. Singh and Mr.
D.S. Dalal are concerned, the case against them was proved beyond
reasonable doubt and their names were removed from the rolls of
advocates of Bar Council of Delhi and the sanads granted to them
were ordered to be withdrawn.

The appeal before us is by D.S. Dalal. We have been informed that

Mr. B. Singh Advocate filed a review petition before the Bar Council
of India on October 22,1989 which is still pending. The Bar Council
has also granted stay of the order dated October 24, 1981 with the
result that Mr.B. Singh is continuing with his legal practise. This
appeal was argued before us by Mr.B.Singh, Advocate. It is not
disputed before us that Mr.B.Singh and Mr. D.S.Dalal were the main
partners of the Firm. It is also not disputed that an amount of
Rs.11,475 was received by these advocates towards the filing of the
suit and further that the connected documents and papers were
received by them. Mr.B.Singh, learned counsel for-the appellant
primarily argued that the suit was filed by the appellant in the Delhi
High Court on December 15, 19'/5 but the record of the suit file was
misplaced/lost by the High Court registry. He further stated that by
his letter dated August 20, 1977, he informed the bank about the suit
file being not traceable and further that the record of the suit was to be
re- structured and refiled.

We have been taken through the copy of the letter dated August 20,
1977, written by Mr.B.Singh on behalf of the Firm to the Regional
Manager, State Bank of India, Parliament Street, New Delhi. The
relevant paragraph is as under "However, as already intimated two
bank cases- one of Delhi Flooring (P) Ltd. of Asaf Ali Road branch
and second of J.M.A.I.E.
Corporation of Jungpura branch filed by the undersigned in Delhi
High Court have been misplaced/lost by High Court Registry and the
record reconstruction petitions have already been given to the
branches in March, 1976 itself. In case the said suits have not already
been got restored through some other learned counsel and the
assistance the undersigned is required for the
restoration/reconstruction then he is willing to cooperate fully without
charging any fee and without insisting on the payment of his
outstanding bills first. The undersigned can work only when he is
allowed to work in terms of his approved schedule of fees and the
payment is made of all his bill, forthwith." The letter dated August 20,
1977, quoted above was not produced before the Bar Council of India.
It has been placed before us for the first time. Apart from the ipse
dixit of the appellant and Mr.B. Singh in the above letter, there is no
evidence on the record to show that the suit file was misplaced or lost
by the High Court Registry. On the other hand, there is cogent and
reliable evidence on the record to show that the Delhi High-. Court
Registry returned back the papers to, Mr. B. Singh for removing the
objections raised by it.

Mr. R.P. Arora, Advocate, appeared as a witness before the Bar

Council of India. The relevant part of his evidence is as under "I know
the respondents in the case. I was instructed by the complainant in
case to find out as to whether the respondents had filed the suit
against the Delhi Flooring (P) Ltd. in the High Court of Delhi which
was entrusted by the complainant with the respondents. Accordingly I
went to Delhi High Court and made enquiries to find out whether
such a suit has been filed. On enquiry I came to know from the
registers of the High Court that the suit had been filed on behalf of the
complainant against Delhi Flooring (P) Ltd. on 15th December, 1975.
1 found from the records that the office has not registered the
suit because of certain objections raised by the office. I also came to
know that the entire suit filed had been returned to the respondents for
complying with the objections and to refile the suit. This was so
returned on 27.7.76. The enquiries that were made by me in the High
Court office was during March 1977 and till that date the suit had not
been refiled by the respondents."
Mr. R.P. Arora, Advocate, after examining the records of the Delhi
High Court had sent two reports to the State Bank of India. In his
report dated March 2, 1977 he stated as under :-

"As desired by you, to know the whereabouts of the above noted case,
I contacted the concern clerk in the Original Branch of High Court of
Delhi at New Delhi and also inspected the registers of the Original
suits. The above noted case was filed by M/s Singh & Co. on
15.12.1975, but there were certain objections by the original branch
and on 31.1.76 the said case (file) was returned to the registree by the
original branch. The register of the registree in respect of the period
from 31.1.1976 is not available and I shall let you know the upto date
information, when the said case was returned to M/s. Singh & Co.
within a short period."

Subsequently in his report dated March 31, 1977, Mr. R.P.Arora,

Advocate gave the following information to the bank:-

"I have enquired from the Original section of High Court of Delhi at
New Delhi, that the file of the above stated case was returned to Shri
B.Singh on 27.7.1976 as the said case was under objections. So far he
has not again filed the said case in High Court."

Both the above quoted reports have been proved on the record of the
Bar Council of India as evidence. The Bar Council of India on
appreciation of the evidence before it came to the conclusion that the
charge against the appellant and Mr. B. Singh was proved beyond
doubt. The Bar Council of India concluded as under:-

"..After having gone through the evidence and the documents

produced in the case carefully, we have come to the conclusion that
the complainant had entrusted the suit to be filed against M/s Delhi
Flooring (Pvt) Ltd. with the necessary papers and Rs. 11,400.74 for
expenses etc. to the respondent-advocates. It is also established that
the respondents have filed the suit on 15.12.1975 with some
objections deliberately and when the papers were returned by the
High Court, they had not refiled the suit for a pretty long time and as
 is established tiff this day. So, we have no hesitation to conclude that
the respondents, have misappropriated the amount realised by them
from the Bank without filing the suit in a proper manner."

We have given our thoughtful consideration to the evidence on the

record against the appellant. We see no ground to interfere with the
order of the Bar Council of India. We agree with the reasoning and
the conclusions reached therein.

We, therefore, dismiss the appeal. No costs.

V.P.R. Appeal dismissed.

42.  Appearance of another counsel in the case without obtaining the

permission of the counsel already engaged by the client. it is
misconduct on the part or the advocate appearing afresh. Giri Raj
Parshad Sharma v. Rajasthan Uni. 1987 civil Court Cases 37

Giriraj Prasad Sharma And Ors vs Mr Jagdish Chand Mohanty

And Ors on 3 October, 2018
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Contempt Petition No. 1587/2017

Smt Shanti Bai, W/o Shri Asha Ram, Aged about 47 years, R/o
Raigar Mohalla, Ward No. 26, Sawai Madhopur. Presently working
as Cook in Government Swachhkar Hostel, Phalodi Quari, District
Sawai Madhopur
----Petitioner
Versus
1. Shri J C Mohanti, Secretary, Social Justice and Empowerment
Departent, Government of Rajasthan, Jaipur
2. Shri Samit Sharma, Commissioner / Director, Social Justice
and Empowerment Department, Govt. of Rajasthan, Jaipur
3. State of Rajasthan through its Secretary, Social Justice and
Empowerment Department, Government of Rajasthan, Jaipur
----Respondents

Connected With S.B. Civil Contempt Petition No. 1756/2017 Smt.

Anokh Bai W/o Shri Ramdev, Aged about 39 years, R/o Mukam Post
Mohalla Ummedpura, Sultanpur, Distt. Kota. At Present Working As
Cook, Govt. Sc/st Hostel, Sultanpur Kota

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti, Principal Secretary, Social Justice

And Empowernment Deptt. Govt. Of Raj, Secretariat, Jaipur Raj.

2. Mr. Samit Sharma, Director Social Justice And Empowerment

Deptt., Govt. Of Rajasthan, Jaipur Raj.

3. Mr. Rakesh Kumar Verma District Probation-Cum-Social Welfare

Officer Social Justice And Empowerment, Kota Raj.

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1758/2017 Balram

Yadav S/o Shri Ramkaran Yadav, Aged about 34 years, R/o Sundar
Ka Nangla, Tehsil Kumher, District Bharatpur, At Present Working
As Cook, Devnarayan Hostel, Nagar District (2 of 20) [CCP-
1587/2017] Bharatpur (Raj.)

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti, Principal Secretary Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma, Director Social Justice And Empowerment

Deptt., Govt. Of Rajasthan, Jaipur Raj.
3. State Of Rajasthan through Secretary, Social Justice And
Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1759/2017

1. Rajulal Meena S/o Shri Pyarelal Meena, R/o Bad Ki Guwadi,

Tehsil Sapotara, Distt. Karauli. At Present Working As Watchman, Sc
Hostel-II, Sapotara, Distt. Karauli Raj.

2. Jagdish Prasad Sain S/o Shri Radhey Shyam Sain, R/o Bapoti,
Tehsil Sapotara, Distt. Karauli. At Present Working As Watchman,
S.C.T. Hostel, Sapotara, Distt. Karauli Raj.

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti, Principal Secretary, Social Justice

And Empowernment Deptt. Govt. Of Raj, Secretariat, Jaipur Raj.

2. Mr. Samit Sharma, Director Social Justice And Empowerment

Deptt., Govt. Of Rajasthan, Jaipur Raj.

3. Mr. Babulal Meena District Officer Social Justice And

Empowerment Deptt., Karauli Raj.

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1761/2017

1. Puranmal Balai S/o Shri Motram Balai, R/o Mukam Post Dhod,
Distt. Sikar At Present Working as Watchman, Government
Ambedkar Hostel, Dhod, Distt. Sikar

2. Sriram Kanwa S/o Shri Sugnaram Kanwa, R/o Mukam Post

Guhala, Distt. Sikar At Present Working As Watchman, (3 of 20)
[CCP-1587/2017] Government Ambedkar Hostel, Thoi, Distt. Sikar

3. Ashok Kumar Kanwa S/o Shri Sugnaram Kanwa, R/o Mukam Post
Guhala, Distt. Sikar At Present Working As Cook, Government
Ambedkar Hostel, Thoi, Distt. Sikar
4. Guddi Devi W/o Shri Naththuram, R/o Ward No.3, Near Shiv
Takij, Ajeetgarh, Distt. Sikar, At Present Working As Cook,
Government Ambedkar Hostel, Ajeetgarh, Distt. Sikar

5. Omprakash S/o Shri Phoosaram, R/o Mukam Post Nayabas,

Fatehpur, Distt. Sikar, At Present Working As Watchman, Govt.
Ambedkar Hostel, Sikar

6. Mohanlal S/o Shri Bhinwaram, R/o Mukam Post Tarpura, Distt.

Sikar, At Present Working As Watchman, Govt. Ambedkar Hostel,
Laxmangarh, Distt. Sikar Omprakash Godwal S/o Shri Rameshwar
Lal, R/o Ward

7. No.5, Near Head Post Office, Srimadhopur, Distt. Sikar, At Present

Working As Watchman, Govt. Ambedkar Hostel, Srimadhopur, Distt.
Sikar Raj.

Sanjay Kumar S/o Shri Rameshwar Lal, R/o Ward No.5,

8. Near Head Post Office, Srimadhopur, Distt. Sikar, At Present

Working As Cook, Govt. Ambedkar Hostel, Srimadhopur, Distt. Sikar
Raj.

9. Balveer S/o Shri Narayan, R/o Mukam Post Dhod, Distt.

Sikar At Present Working As Watchman, Government Ambedkar

Hostel, Dhod, Distt. Sikar 10 Gokul Kuldeep S/o Shri Kanaram, R/o
Mukam Post Amarsar, Teh. Shahpura, Distt. Jaipur At Present
Working As Temporary Worker, Govt. Ambedkar Hostel,
Manoharpur, Jaipur 11 Murlidhar Kuldeep S/o Shri Puranmal
Kuldeep, R/o Mukam Post Badnagar, Sedu Singh Ki Dhani, Kotputli,
Distt. Jaipur, At Present Working As Temporary Worker, Govt.
Ambedkar Hostel, Manoharpur, Jaipur 12 Kaluram Bunkar S/o Shri
Dholuram Bunkar, R/o Mukam Post Radawas, Teh. Shahpura, Distt.
Jaipur At Present Working As Temporary Worker, Govt. Ambedkar
Hostel, Radawas, Jaipur 13 Banwari Lal Chawla S/o Shri Kishnaram
Chawla, R/o Mukam Post Lunwa, Teh. Nawa, Distt. Nagaur, At
Present Working As Temporary Worker, Government Ambedkar
Hostel, (4 of 20) [CCP-1587/2017] Lunwa, Distt. Nagaur 14 Jagdish
Prasad Gurjar S/o Shri Moolchand Gurjar, R/o Mamodiya Ka
Mohalla, Ward No. 10, Town Chaksu, Shahpura, Distt. Jaipur At
Present Working As Temporary Worker, Govt. Ambedkar Hostel,
Chaksu, Distt. Jaipur 15 Kirodi Lall Meena S/o Shri Ramsingh
Meena, R/o Village Kathera, Post Khera Kalyanpura, Teh. Kathumar,
Distt. Alwar At Present Working As Temporary Worker, Govt.
Ambedkar Hostel, Kotkhawada 16 Smt. Kamla Devi W/o Shri
Kailash, R/o Mukam Post Gagradu Via Dudu, Distt. Jaipur At Present
Working As Temporary Worker, Govt. Ambedkar Hostel, Gagradu 17
Smt. Indra Devi W/o Shri Mangilal Swami, R/o Mukam Post
Sambhar, Teh. Phulera, Distt. Jaipur At Present Working As
Temporary Worker, Govt. Ambedkar Hostel, Sambhar Lake 18 Suraj
Verma S/o Shri Kesharram, R/o Mukam Post Geela Ki Nangal, Teh.
Bassi, Distt. Jaipur, At Present Working As Temporary Worker, Govt.
Ambedkar Hostel, Nayla 19 Parmaram S/o Shri Bheruram Meghwal,
R/o Ambedkar Hostel, Lunwa, Distt. Nagaur At Present Working As
Temporary Worker, Govt. Ambedkar Hostel, Lunwa, Distt. Nagaur
20 Sharwani Devi W/o Shri Madanlal Kuldeep, R/o Mukam Post
Amarsar, Teh. Shahpura, Distt. Jaipur At Present Working As
Temporary Worker, Govt. Ambedkar Hostel, Amarsar 21 Mooli Bai
W/o Shri Kistur Chand, R/o Itawa, Teh. Pipalda, Distt. Kota At
Present Working As Temporary Worker, Govt. Ambedkar Hostel,
Pipalda, 22 Rajesh Kumar Gurjar S/o Shri Ramjeet, R/o Alipur Khor,
Teh. Deeg, Distt. Bharatpur At Present Working As Temporary
Worker, Govt. Ambedkar Hostel, Deeg, Distt. Bharatpur 23
Haricharan S/o Shri Ramsingh, R/o Bhuraka, Post Jaluki, Teh. Nagar,
Distt. Bharatpur At Present Working As Temporary Worker, Govt.
Ambedkar Hostel, Deeg, Distt.

Bharatpur
----Petitioners
Versus
(5 of 20) [CCP-1587/2017]

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.
2. Mr. Samit Sharma Director, Social Justice And Empowerment
Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1762/2017

1. Manoj Kumar Bharti S/o Shri Panchulal Bharti, R/o

Goverdhanpura, Post Phulera, Distt. Jaipur

2. Premchand S/o Shri Phoolchand Bairwa, R/o Kutti, Bandikui

Madanlal S/o Shri Amarlal Lodha, R/o Aanwal Khera, Distt.

3. Jhalawar Badrilal Gochar S/o Shri Parmanand Gochar, R/o

Kodiyon

4. Ka Chowk, Near New Police Station, Sangod, Distt. Kota

5. Nand Kanwar W/o Shri Brijmohan Gochar, R/o Ward No. 19,
Kothiyon Ka Chowk, Sangod, Distt. Kota

6. Satyanarayan Kuldeep S/o Shri Jagdish Prasad Raigar, R/o Village

Amarsar, Teh. Chomu, Distt. Jaipur

7. Tejpal Singh Meena S/o Shri Ramhet Meena, R/o Dudu, Distt.
Jaipur Nandlal Gurjar S/o Shri Mathuralal Gurjar, R/o Sarola

8. Kalan, Distt. Jhalawar

9. Balaram S/o Shri Bhagirath Meghwal, R/o Duwaliya, Distt.

Jhalawar 10 Dwarkalal S/o Shri Ganga Bairwa, R/o Bidai, Post

Vinendri, Teh. Chipabadod, Distt. Baran 11 Ghanshyam Bairagi S/o
Shri Moolchand Bairagi, R/o Jalihera, Teh. Sangod, Distt. Kota 12
Manbhar W/o Late Shri Babulal Khatik, R/o Digod, Distt.

Kota 13 Anita Bai W/o Shri Ramesh Chand Sain, R/o Bpawat, Teh.

Sangod, Distt. Kota 14 Kokila Bai W/o Shri Mohan Lal, R/o Khatoli,
Teh. Pipalda, (6 of 20) [CCP-1587/2017] Distt. Kota 15 Meera Devi
W/o Shri Mamraj Sain, R/o Dakota Ka Mohalla, Narayanpur, Distt.
Alwar 16 Roshanlal Meena S/o Shri Sharwan Lal Meena, R/o Baswa
Neemla Bazar, Distt. Dausa Raj.

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1763/2017

1. Omprakash Raigar S/o Shri Pokharmal, R/o Ward No. 38, Raigar
Basti, Churu. At Present Working As Cook, Government Sc/st Boys
Hostel, Sikar.

2. Geeta Devi W/o Shri Tarachand Pareek, R/o Aana Sagar, Moro Ki
Gali, Sikar. At Present Working As Watchman, Government
Ambedkar Girls Hostel, Sikar.

3. Santra Devi W/o Shri Gopal Swami, R/o Ward No. 4, Near Senior
Secondary School, Ajeetgarh, Distt. Sikar. At Present Workingas
Cook, Government Ambedkar Hostel, Ajeetgarh, Distt. Sikar Raj.

4. Gopalram S/o Shri Heeralal Nayak, R/o Mukam Post

Raghunathgarh, Distt. Sikar. At Present Working As Watchman,
Government Ambedkar Hostel, Piprali, Sikar Raj.

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti, Principal Secretary, Social Justice

And Empowerment Deptt. Govt. Of Raj, Secretariat, Jaipur Raj.

2. Mr. Samit Sharma, Director Social Justice And Empowerment

Deptt., Govt. Of Rajasthan, Jaipur Raj.
(7 of 20) [CCP-1587/2017]

3. Mr. Omprakash Rahad District Officer Social Justice And

Empowerment Deptt., Sikar Raj.

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1764/2017 Smt.

Shanti Bai W/o Shri Asharam, R/o Raigar Mohalla, Ward No. 26,
Sawaimadhopur Raj. At Present Working As Cook, Govt. Sc/st
Hostel, Falodi Quarry, Distt. Sawaimadhopur Raj.

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 1765/2017

1. Chitarlal Pareek S/o Shri Budhichand, R/o Ramnagar Colony,

Jaipur Road, Malpura, Distt. Tonk Raj.

2. Santosh Vaishnav W/o Shri Mahaveer Prasad, R/o Japta Colony,

Bus Stand, Malpur, Distt. Tonk

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.
3. State Of Rajasthan Through Secretary, Social Justice And
Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 644/2018 (8 of 20)

[CCP-1587/2017] Madan Lal S/o Shri Amar Lal Lodha, aged about
39 years, R/o Vilalge and Post Aanwalheda, Tehsil Manohar Thana,
District Jhalawar. Presently working as Watchman in Social Welfare
Hostel, Kolikhedi

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. Shri Gauri Shankar, District probation and Social Welfare Officer,

Social Justice and Empowerment Deparatment Jhalwar

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 645/2018 Smt

Shanti Bai, W/o Shri Om Prakash Garg, aged about 57 years, R/o
Social Welfare Hostel, Mala Road, Kota

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. Shri Rakesh Verma District Probation and Social Welfare Officer,

Social Justice and Empowerment Department, Kota

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.
----Respondents S.B. Civil Contempt Petition No. 646/2018 Smt
Santosh Bai, W/o late Bhanwar Lal, aged about 49 years, R/o
Khedliganj, Atru, District Baran. Presently working as Cook in
Ambedkar Hostel, Atru, District Baran.

(9 of 20) [CCP-1587/2017]

----Petitioner
Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 647/2018 Madan

Lal Yogi, S/o Shri Dhoola Nath Yogi, Aged about 43 years, R/o
Gadegal, Post Bayana, Tehsil and District Bundi. Presently working
as Cook in Government Ambedkar Vimukt Jati Hostel-I Bundi

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. Smt. Savita Krishniya, District Officer, Social Justice and

Empowerment Department, Bundi

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.
----Respondent S.B. Civil Contempt Petition No. 648/2018

1.Kriparam S/o Shri Faddi Ram, Aged about 49 years, R/o Village
Gajaro Kalan, Tehsil Sepau, District Dholpur. At present working as
Watchman in Government Ambedkar Hostel, Maniya, District
Dholpur

2. Ramkali, W/o Hanuman Singh, R/o Village Maniya, District

Dholpur. Presently working as Cook in Government Ambedkar
Hostel, Maniya, District Dholpur (10 of 20) [CCP-1587/2017]

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 690/2018

1. Seema Sharma W/o Krishan Kant Sharma, Aged about 30 years,

R/o Chamunda Vihar, Ganpati Nagar, Pushkar Road, Ajmer.
Presently working as Watchman in Government Girls Hostel, Pushkar
Road, Ajmer

2. Parmeshwar Lal S/o late Shri Chandraji Meena, R/o Village and
Post Chitiwas, Via Sawa, Tehsil Sawar Kekri, District Ajmer
Presently working as Watchman in Government Ambedkar Hostel,
Peesangan, District Ajmer

3. Usha Sharma, W/o Shri Ramlal, R/o Village and post Semarda,
Post Karunda, Tehsil Chhoti Sadri, Pratapgarh, Presently working as
Cook in Chhoti Sadri, District Pratapgarh
4. Prem Kanwar W/o Arjun Singh, R/o Talai Mohalla, Pratapgarh.
Presently working as Cook in Child Hostel, Pratapgarh, District
Pratapgarh

5. Dinesh @ Jeetmal Meena S/o Bhuriya Meena, R/o Peepalkhunt,

District Pratapgarh. Presently working as Cook in Peepalkhunt,
District Udaipur

6. Kana S/o Moti, R/o Peepalkhunt, District Udaipur. Presently

working as Cook in Peepalkhunt, District Udaipur

7. Kali Bai W/o Shankar Lal Meena, R/o Peepalkhunt, District

Udaipur. Presently working as Cook in Peepalkhunt, District Udaipur

8. Bhoori Bai, W/o Hukmi Chand Menariya, R/o C/o Ramlal 216,
Bhatt Talai, Paneriya Ki Madri District Udaipur. Presently working as
Cook, Fateh Parisar, District Udaipur

9. Tejpal Ahari S/o Khema, R/o Bhootrikala Doodwa Khairwada

District Udaipur Presently working as Cook in Madar, Tehsil
Badagaon, District Udaipur (11 of 20) [CCP-1587/2017]

10. Lalit Vyas S/o Bhanwar Lal Ji Vyas, R/o Village and Post
Amliya, Tehsil Jhadol, District Udaipur. Presently working as Cook,
Ogan, District Udaipur

11. Dhula Ram, S/o Shri Ramaji Gagaar, R/o Village and Post
Aamliya, Tehsil Jhadol, District Udaipur. Presently working as Cook
in Kanya Jhadol District Udaipur

12. Meetha Lal S/o Onkar Ji, R/o Teliya Ka Mohalla, Gogunda,
District Udiapur. Presently working as Cook in Kanya Gogunda,
District Udaipur

13. Savita W/o Laxman Ji Kharadi, R/o Village and Post Ogan, Tehsil
Jhadol, District Udaipur. Presently working as Cook in Jawas, District
Udaipur
14. Poona Ram Bheel S/o Shri Dhula Ji Bheel, R/o Village Gata Post
Kachhwa, Tehsil Gogunda, District Udaipur. Presently working as
Cook in Madhukt, District Udaipur

15. Smt. Tulsi W/o Shri Chaturbhuj Ji Vaishnav, R/o Rebariyon Ka

Guda, Post Dheekli, Tehsil Badgaon, District Udaipur. Presently
working as Cook in Government Ambedkar Child Hostel-II, Udaipur

16. Smt. Durga Bai W/o Shri Mohan Ji Gameti, R/o Pratapnagar,
Dheekli Road, Near Old RTO Office, Tehsil Girwa, District Udaipur.
Presently working as Cook in Government Ambedkar Child Hostel-I,
Udiapur

17. Smt. Lali Bai W/o Shri Prakash Ji Vaishnav, R/o Mukam
Rebariyon Ka Guda, Post Dheekli, Tehsil Badagaon District Udaipur.
Presently working as Cook in Government Ambedkar Child Hostel-I,
Udiapur

18. Smt. Ganga Bai W/o late Shri Kanti Lal Ji Sevak, R/o Village and
Post Jhadol, Tehsil Jhadol (Falasiya), District Udaipur. Presently
working as Cook in Government Savitri Bai Phule Kanya Hostel,
Jhadol, Udaipur

19. Panna Lal Patel S/o Shri Nanaji Patel, R/o Village and Post
Jhadol, Tehsil Jhadol (Falasiya), District Udaipur. Presently working
as Cook in Government Ambedkar Child Hostel Gogla, Udaipur

20. Devi Lal S/o Keshra Ji Meena R/o Village and Post Masharo Ki
Obri, Tehsil Kesariya Ji District Udaipur. Presently working as Cook
in Government Ambedkar Child Hostel, Babrana, Udaipur

21. Mohan Lal S/o Shri Pana Ram Ji Garasiya, R/o Village Kurra,
Post Bokhada Tehsil Gogunda, District Udaipur. Presently working as
Cook in Government Ambedkar Child Hostel, Sayra, Udaipur

22. Devaram S/o Shri Bhura Ram Ji Garasiya, R/o Village Kadech,
Post Rawach, Tehsil Gogunda, District Udaipur. Presently (12 of 20)
[CCP-1587/2017] working as Cook in Government Ambedkar Child
Hostel Sayra, District Udaipur
23. Prakash Chand Kateriya, S/o Manaram Kateriya, R/o Village
Ajaypura, Post Ogan, Tehsil Jhadol, District Udaipur. Presently
working as Cook in Government Ambedkar Hostel Ogan (Udaipur)

24. Vilos Bai W/o Shri Naresh Chandel, R/o through Ghanshyam
Sankhla, 4B Housing Board Bundi, presently working as Cook in
Ambedkar Hostel, Bundi

25. Basanti W/o Phool Chand, R/o through Ghanshyam Sankhla, 4B

Housing Board Bundi, presently working as Cook in Ambedkar
Hostel, Bundi

25. Chandra Kala W/o Prakash Chand, R/o through Ghanshyam

Sankhla, 4B Housing Board Bundi, presently working as Cook in
Ambedkar Hostel, Bundi

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondent S.B. Civil Contempt Petition No. 691/2018

1. Purilal Meghwal S/o Shri Ram Narayan, Aged about 30 years, R/o
Veenda, Post Devri Kalan, Tehsil Aklera, District Jhalawar, presently
working as Watchman in Government ST Hostel Aklera, District
Jhalawar

2. Ramkanya Bai W/o Deepchand, R/o Mewada Hat, Chowk Mohalla,

Ward No. 17, Aklera, District Jhalawar. Presently working as Cook in
Government ST Hostel, Aklera, District Jhalawar.

----Petitioners Versus
1. Mr. Jagdish Chand Mohanti Principal Secretary, Social (13 of 20)
[CCP-1587/2017] Justice And Empowerment Deptt. Govt. Of
Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondents S.B. Civil Contempt Petition No. 694/2018

1. Shyam Lal Sharma S/o Ganesh Ji Sharma, R/o Village and Post
Soniyana Post Pachhmata, Via Gilund (Rajsamand) presently working
as Cook in Fateh Complex, District Udaipur

2. Ramlal S/o Jaichand, R/o Village and Post Semarda, Post Karunda,
Tehsil Chhoti Sadri, Pratapgarh, Presently working as Cook in Chhoti
Sadri, District Pratapgarh

3. Amba Lal Meena S/o Nagu Meena, R/o Mooliya Kheda Post Moti
Khedi, Tehsil Peepalkhunt, District Pratapgarh

4. Ramesh Chandra Meena S/o Nagu Ji Meena, R/o Mooliya Kheda,

Post Moti Khedi, Tehsil Peepalkhunt, District Pratapgarh

5. Heera Lal S/o Shri Ramji Lal, R/o Pipliya, Tehsil Dariyawad,
District Udaipur

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondent S.B. Civil Contempt Petition No. 709/2018

1. Santosh Bai W/o Shri Mangi Lal, Aged about 42 years, R/o Ward
No. 16, Majid Khairawad, Tehsil Ramganj Mandi, District Kota.
Presentlyi working as Cook in ST Hostel, Khairabad, District Kota

2. Manji Bai W/o Mohan Lal, Aged about 44 years, R/o near (14 of
20) [CCP-1587/2017] Swami Narayan Chat Sector, Khairabad, Tehsil
Ramganj Mandi, District Kota. Presently working as Cook in
Ambedkar Hostel Khairabad, District Kota

3. Santosh W/o Latur Lal, R/o Gari Mohalla, Bada Talab, Kawai,
District Baran. Presently working as Cook in Ambedkar Hostel Katai,
District Baran

4. Buddram @ Chhotu Lal S/o Madan Lal Vaishnav, R/o Village and
Post Pushkar, District Ajmer, presently working as Cook in
Ambedkar Hostel, Pushkar (Ajmer)

5. Tarabai W/o Karn Singh, R/o Pratapgarh, District Pratapgarh,

presently working as Cook in Child Hostel, Pratapgarh

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondent S.B. Civil Contempt Petition No. 757/2018

1. Purilal Meghwal S/o Shri Ramnarayan, R/o Vinda Post Devri

Kalan, Tehsil Aklera, District Jhalawar At Present Working As
Watchman Government St Hostel, Aklera District Jhalawar Raj

2. Ramkanya Bai W/o Shri Deepchand, R/o Mewara Hat Chowk

Mohalla Ward No.17 Aklera, District Jhalawar. B At Present
Working As Cook, Government St Hostel, Aklera District Jhalawar
Rajasthan

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti, Principal Secretary Social Justice And

Empowerment Deptt. Govt Of Rajasthan Secretariat, Jaipur Raj

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan Jaipur Raj (15 of 20) [CCP-1587/2017]

3. Mr. Gauri Shankar Meena, District Officer Social Justice And

Empowerment Deptt. Jhalawar Raj

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur
Rajasthan

----Respondents S.B. Civil Contempt Petition No. 765/2018

1. Girraj Prasad Sharma S/o Shri Prabhu Dayal Sharma, Presently

Working As Cook, Govt. Ambedkar Hostel Gandwara, District Dausa
Raj

2. Daulatram Hada S/o Shri Babulal, Presently Working As Cook,

Govt. Ambedkar Hostel, Bandikui, District Dausa Rajasthan

3. Jagdish Prasad Meena S/o Shri Kajodmal, Presently Working As

Chowkidar, Govt. Ambedkar Hostel, Bahravnda, District Dausa
Rajasthan

4. Jagdish Nai S/o Shri Radheyshyam, Presently Working As

Chowkidar, Govt. Ambedkar Hostel Sapotara, District Karauli
Rajasthan

5. Ghisya Ram S/o Shri Prabhu Ram Meena, Presently Working As

Chowkidar, Govt. Ambedkar Hostel, Karanpur, District Karauli Raj
6. Vijay Kumar Sain S/o Shri Jagdish Sain, Presently Working As
Cook, Govt. Ambedkar, Hostel, Devnarayan Sapotara, District
Karauli Raj

7. Haple Meena S/o Shri Pyarelal, Presently Working As Cook Govt

Ambedkar Hostel Sapotara Second, District Karauli Raj

8. Madanlal S/o Shri Amar Lal Lodha, Presently Working As

Chowkidar, Govt. Ambedkar Hostel, Kolukheri, District Jhalawar
Rajasthan

9. Smt. Munna Bai W/o Shri Ramsingh Rajput, Presently Working As

Cook Govt. Ambedkar Hostel Unhel, Nageshwar, District Jhalawar
Raj 10 Smt. Rukko Devi S/o Shri Deviram, Presently Working As .
Cook, Govt. Ambedkar Hostel Kaman, District Bharatpur Rajasthan
11 Smt. Chandrakala W/o Shri Kundan Singh, Presently . Working As
Chowkidar, Govt. Ambedkar Hostel Kanya Rahora, Kumher, District
Bharatpur Rajasthan (16 of 20) [CCP-1587/2017] 12 Smt. Lalita
Sharma W/os Hri Santosh Sharma, Presently . Working As Cook,
Govt. Ambedkar Hostel, Dausa First, Distt Dausa Raj 13 Bhikharam
Bairwa S/o Shri Ramhet Bairwa, Presently . Working As Cook Govt.
Ambedkar Hostel Bansoor, District Alwar Rajasthan 14 Smt. Choti
Devi W/o Shri Bhikharam Bairwa, Presently . Working As Cook
Govt. Ambedkar Hostel Bansoor, District Alwar Rajasthan 15
Kishore Singh Rajput S/o Shri Chhitar Singh, Presently . Working As
Cook, Govt. Ambedkar Hostel Devnarayan, Bansoor, District Alwar
Raj 16 Smt. Usha Devi W/o Shri Kishore Singh, Hostel Devnarayan, .
Bansoor District Alwar Raj 17 Roshan Lal Saini S/o Shri Ganpat Lal,
Presently Working As . Cook, Govt. Ambedkar Hostel Devnarayan,
Bansoor, District Alwar Rajasthan 18 Suresh Kumar Bairwa S/o Shri
Mangilal Bairwa, Presently . Working As Cook, Govt Ambedkar
Hostel Kotkhawda, Jaipur Rural, Jaipur Raj 19 Smt. Badam Devi W/o
Shri Prem Chand Bairwa, Presenlty . Working As Cook, Govt
Ambedkar Hostel Bandikui, District Dausa Raj 20 Smt. Savitri Devi
W/o Shri Ramprasad Prajapat, Presently . Working As Cook, Govt.
Ambedkar Hostel Dausa -Iii, Distt.
Dausa Rajasthan 21 Smt. Anita Bai W/o Shri Ramesh Sain, Presnelty
Working As . Cook, Govt. Ambedkar Hostel Bapawar Kala, District
Kota Rajasthan 22 Smt. Sugana Bai W/o Shri Omprakash Khatik,
Presently . Working As Cook, Govt. Kanya Hostel Pipalda, District
Kota Rajasthan 23 Chainaram S/o Shri Jetha Ram Meghawal,
Presently . Working As Chowkidar, Govt. Ambedkar Hostel,
Gachhipura, District Nagaur Rajasthan 24 Smt Sita Devi Saini W/o
Shri Santosh Kumar, Presently . Working As Cook, Govt Ambedkar
Hostel Bahrawanda, District Dausa Raj 25 Nemichand S/o Shri
Baksaram Meghwal, Presently Working . As Cook, Govt. Ambedkar
Hostel Dantaramgarh, District (17 of 20) [CCP-1587/2017] Sikar
Rajasthan 26 Rameshwar Lal S/o Shri Baksaram Meghwal,
Presently . Working As Cook, Govt. Ambedkar Hostel Dantaramgarh,
District Sikar Rajasthan 27 Rajulal Meena S/o Shri Likhmi Chand,
Presently Working As . Cook, Govt Ambedkar Hostel, Dausa Third,
Distt Dausa Rajasthan 28 Sanni Singh Chouhan S/o Shri Babu Singh,
Presently . Working As Cook, Govt. Ambedkar Hostel Dausa Third
Dausa Raj 29 Smt. Kiran Devi W/o Shri Ramotar Khatik, Presently .
Working As Cook, Savitri Bai Kanya Hostel, Dausa Raj 30 Smt.
Nathi Devi Bairwa W/o Shri Mangilal Bairwa, Presently . Working
As Cook, Govt. Ambedkar Hostel, Bandikui, Distt.

Dausa Raj

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur
Rajasthan

2. Sh. Rakesh Kumar Verma, Deputy Director, Social Justice And

Empowerment Departmetn Kota Rajasthan

3. Mr. Pinki Gotwal, Assistant Director, Social Justice And,

Empowerment Department Nagaur Raj

4. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj
5. Mr. Samit Sharma Director, Social Justice And Empowerment
Deptt. Govt. Of Rajasthan Jaipur Raj

6. Sh. Chandra Shekhar Choudhary, Deputy Director, Social Justice

And Empowerment Department, Jaipur Rural, Jaipur Rajasthan

7. Sh. Nawal Khan Assistnat Director, Social Justice And

Empowerment Department, Alwar Rajasthan

8. S. Kartar Singh Meena, Deputy Director, Social Justice And

Empowerment Department, Bharatpur Rajast

9. Sh. Rajendra Gurjar, District Probation And Social Welfare Officer

Social Justice And Empowerment, Department Dausa Rajasthan (18
of 20) [CCP-1587/2017] 10 Sh. Gauri Shankar, District Probation
And Social Welfare . Officer, Social Justice And Empowerment,
Department, Jhalawar Rajasthan 11 Sh. Babulal Meena, District
Probation And Social Welfare . Officer, Social Justice And
Empowerment De, Karauli Rajasthan 12 Sh. Omprakash, Rahd,
District Probation And Social Welfare . Officer, Social Justice And
Empowerment Department, Sikar Rajasthan

----Respondents S.B. Civil Contempt Petition No. 955/2018 Jagdish

Prasad Sain, S/o Shri Radhey Shyam Sain, aged about 45 years, R/o
Bapoti, Tehsil Sapotara, District Karauli. Presently working as
Watchman in SCT Hostel, Sapotara

----Petitioner Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondent S.B. Civil Contempt Petition No. 958/2018

1. Kaushalya Kanwar W/o Shri Prabhu Singh, aged about 33 years,
R/o Sadas Indrapuri Tehsil Gangrar, District Chittogarh. Presently
working as Cook in District Child Hostel, Sadas District Chittorgarh

2. Ramdhan Balai, S/o Shri Chhotu, R/o Raghunathpura, Badgaon

District Ajmer. Presently working as Cook in Ambedkar Hostel
Sarwad District Ajmer

3. Suresh Chand S/o Sagar Mal Dambi, R/o Golya Tehsil Bhinay,
District Ajmer presently working as Cook in Ambedkar Hostel
Masuda, District Ajmer

4. Manju Devi W/o Parmeshwar Lal, R/o Village and Post Sitawas,
Tehsil Sawar District Ajmer. Presently working as Cook (19 of 20)
[CCP-1587/2017] in Ambedkar Hostel, Peesanganj, District Ajmer

----Petitioners Versus

1. Mr. Jagdish Chand Mohanti Principal Secretary, Social Justice And

Empowerment Deptt. Govt. Of Rajasthan Secretariat, Jaipur Raj.

2. Mr. Samit Sharma Director, Social Justice And Empowerment

Deptt. Govt. Of Rajasthan, Jaipur Raj.

3. State Of Rajasthan Through Secretary, Social Justice And

Empowerment Deptt., Govt. Of Rajasthan, Secretariat, Jaipur.

----Respondent S.B. Civil Contempt Petition No. 1116/2018

1. Manoj Kumar Yogi S/o Shri Prabhu Nath Yogi, R/o Village
Chitodi, Post Banskhoh, Tehsil Bassi, District Jaipur Rajasthan

2. Smt. Anguri Devi @ Tara Devi W/o Banwari Lal, R/o Near Bus
Stand, Bassi, District Jaipur Rajasthan

3. Rajendra Prasad Meena S/o Ramphool Meena, R/o Chitodi, Post

Banskhoh, Tehsil Bassi, District Jaipur All Are Present Working As
Part-Time Employee In Govt. Ambedkar Hostel, Bassi, District Jaipur
Rajasthan
----Petitioners Versus

1. Shri J.c. Mohanti, Secretary, Department Of Social Justice And

Empowerment, Govt. Secretariat, Jaipur Rajathan

2. Shri Samit Sharma, Director, Department Of Social Justice And

Empowerment, Govt. Of Rajasthan 22 Godown, Jaipur Rajasthan

3. State Of Rajasthan Secretary, Department Of Social Justice And

Empowerment, Govt., Secretariat, Jaipur Rajasthan

----Respondents For Petitioner(s) : Mr. KC Sharma, Mr. Azad Ahmed

For Respondent(s) : Mr. Harish Kandpal for Mr GS Gill, AAG (20 of
20) [CCP-1587/2017] HON'BLE MR. JUSTICE ALOK SHARMA
Order 03/10/2018 Non compliance of the orders of this Court passed
on 25.4.2017, 6.7.2017, 8.8.2017, 13.9.2017 8.11.2017, 24.11.2017,
15.1.2018 and 20.3.2018 has been alleged in these petitions. Under
the aforesaid orders, the respondents were directed to give petitioners
the benefit of minimum pay in the pay scale of Class-IV servant
working in the Social Justice and Empowerment Department.

Mr. Harish Kandpal for Mr. GS Gill, AAG appearing for the
respondents submitted that vide order no. F.1(4) ()
Estt/SJED/18/112929 dated 3.10.2018 and order no. F.1(4) ()
Estt/SJED/18/112907 dated 3.10.2018 petitioners and other similarly
placed working on temporary basis at various hostels run by Social
Justice and Empowerment Department have been given minimum pay
in the pay scale of Class-IV servants working in the Social Justice and
Empowerment Department. He submits that consequential arrears will
be paid to the petitioners in due course.

In view of the orders dated 3.10.2018 referred to above, the contempt

petitions are disposed of. Notices stand discharged. In the event the
petitioners are not paid the arrears consequent to the orders dated
3.10.2018 within four months, they will be free to move an
application for revival of these contempt petitions.

Registry is directed to place a copy of this order in each connected

file.
(ALOK SHARMA),J DK Powered by TCPDF (www.tcpdf.org)

11. Conclusion
The objective of Disciplinary Committee Proceedings is to uphold the
nobility of the profession of advocacy by punishing those who
misconduct. The fact that numerous rulings Disciplinary Committees
of the Bar Council of India are being overruled, proves that the
Disciplinary Committees are weak in appraising the justice in the
standards of the Supreme Court. One of the reasons behind this is that
Bar Councils are associations of the advocates and they view
advocates with a sympathetically.

Double Jeopardy – Criminal Prosecution verses Disciplinary

Proceedings:
The object of the disciplinary proceedings is to ascertain whether the
officer concerned is suitable to be retained in service. On the other
hand the object of the criminal prosecution is to find out whether
ingredients of the offence as defined in the penal statute have been
made. Article 20(3) of the Constitution of India also does not apply to
a departmental inquiry because the official is not being tried to for any
criminal offence.
[Bhagwan Singh vs. Deputy Commissioner Sitapur, AIR 1962 All
232: 1962 (1) CrLJ 554]
Departmental Inquiry during the Pendency of a Criminal
Prosecution:
Holding of a departmental enquiry during pendency of a criminal
prosecution in respect of the same subject-matter would not amount to
a contempt of court. The departmental authorities are free to exercise
such lawful powers as are conferred on them by the departmental
rules and regulations and such exercise of powers bonafide will not
come within the mischief of the law of contempt, especially when the
departmental authorities did not publish their orders nor tried to
influence the court in any manner.
[Mehra Singh vs. Supdt of Post offices, Jabalpur, AIR 1962 MP 72]
Natural Justice in Disciplinary Proceedings:
The aim of Natural Justice is to secure justice or to put it negatively,
to prevent miscarriage of justice. These rules operate only in areas not
covered by any law validly made. In other words they do not supplant
the law but supplement it.
[Supreme Court - (1969) 2 SCC 262; AIR 1970 SC 150 - A.K.
Kraipak vs. Union of India]
There must be ever present to the mind of men the fact that our laws
of procedure are grounded on the principle of Natural Justice which
require that men should not be condemned unheard, that decisions
should not be reached behind their backs, that proceedings which
affect their lives and property should not continue in their absence and
that they should not be precluded from participating in such
proceedings.
[Ramseth vs. Collector of Dharbang, AIR 155 PAT 345]
The expression 'Natural Justice' conveys the notion that the result of
the process should be just. There are two concepts underlying this
doctrine, namely, the authority deciding the dispute should be
impartial and the party to be affected should be given full and fair
opportunity of being heard.
[C. Pitchiah vs. Andhra University - 1961 ALT. 317, AIR 1961 AP
465]
The term 'misconduct' means an act done willfully with a wrong
intention and as applied to professional people; it includes
unprofessional acts, even though such acts are not inherently
wrongful. It also means a dereliction of or deviation from duty.
[Nahood Ali Khan, Inre, AIR 1958 AP 116]
Speaking Orders in Appeal Cases:
The Supreme Court and the High Courts have emphasised that the
appellate authorities must give reasons and there should be some
discussion of the evidence on record. An appellate authority has a
legal duty to deliberate about merit and adjudge it before confirming,
enhancing, reducing or setting aside the penalty.
[Nathaniel Ghosh vs. Union Territory of Arunachal Pradesh, (1980)
2 SLR 733]
Personal Hearings at Appeal Stage:
It appears fairly clear that the fundamental basis on which it is
thought necessary to include if the concept of "reasonable
opportunity" the right of personal hearing and putting forward his
case at the first stage is that he must have the opportunity of leading
his evidence, cross-examining the prosecution witness, pointing out
the demeanor of those witnesses and personal appeal to the Enquiry
Officer to appreciate that the evidence in the light in which he would
like to be appreciated and urge his case or convince him of the
weakness of prosecution case and strength of his own case. At the
second stage, however, only the right to make representation has been
held to be sufficient compliance with the requirement of constitutional
protection of giving a reasonable opportunity and the requirement of
personal hearing is not thought necessary because at that stage the
authority is merely to take his decision from the record before him.
The right of personal hearing is intended to be necessary requirement
of the concept of reasonable opportunity to show cause only at the
stage when evidence is to be led, cross-examination of the witness is
to be done and the demeanor of the witness is to be watched and not
at the stage when decision is to be taken from record before the
deciding Appellate Authority. The proceedings in the departmental
proceedings are only quasi-judicial proceedings. All the procedure of
an ordinary trial or proceedings in a Court of Law is not applicable.
The principle obtainable in the court of law even at the stage of appeal
the right of personal hearing is a necessary right to do justice between
the parties cannot be bodily applied to departmental inquiries which
are not bound to follow all the procedure and requirement of a judicial
trial or proceedings.
[State of Gujarat vs. P.B.Ramalbhai, AIR 1969 Guj, 260]
Where an appeal is preferred by the Government Servant against the
order of the disciplinary authority, it is not necessary that he should be
given personal hearing at that stage.
[F.N.Roy vs. Collector of Customs, Calcutta AIR 1957 SC 648]
The proceedings before an appellate authority are a continuation of
the proceedings before the enquiry officer and both these proceedings
taken together point to the conclusion. That the guarantee under
Article 311 is satisfied and the failure to give a personal hearing to the
petitioner in appeal by itself will not render proceedings illegal.
[Bindanath vs. State of Assam AIR 1959 Assam 112]
Unless statutory rules so require or a specific prayer for personal
hearing is made by the appellant in writing in the petition of appeal
itself, it is not incumbent on the appellant authority to afford a
personal hearing to a person aggrieved against an order imposing
punishment on him in departmental proceedings.
[Vijay Singh Yadav vs. State of Haryana and others 1971 SLR 720
(Punjab and Haryana)]
Where the rules are silent regarding personal hearing but an
opportunity is demanded by the delinquent official before the
Appellant Authority to represent his case, such a request should not
be refused, as it violates principles of natural justice.
[Ranjit Singh vs. Inspector of Police and others, 1979 AISLJ 57
(Punj)]
Provisions of Article 311 of the Constitution in Disciplinary
Cases:
The implications of the provisions of Article 311 have been the
subject of a close examination by the Supreme Court. The Supreme
Court has given exhaustive interpretation of the various aspects
involved and they provide the administrative authorities authoritative
guidelines in dealing with disciplinary cases.
[Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC 36;
Khem Chand vs. Union of India, AIR 1958 SC 300; and Union of
India and another vs. Tlusiram Patel, 1985(2) SLR SC 576]
Articles 310 and 311 apply to Government servants, whether
permanent, temporary, officiating or on probation.
[Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC 36]
Issue and Service of Charge-sheet:
Endorsements of Postal Authorities on letters “not found”, “not
traceable”, “not known”, “left” do not amount to service, but an
endorsement “refused” does. The Supreme Court has laid down, that
charge sheet is issued when it is framed and despatched to the
employee irrespective of its actual service on the employee.
[Delhi Development Authority vs. H.C. Khurana, 1993(2) SLR SC
509 and Union of India vs. Kewal Kumar, 1993(2) SLR SC 554]
Disagreement of Disciplinary Authority with the Findings of the
Inquiring Authority:
On the question of the disciplinary authority disagreeing with the
findings of the inquiring authority, the Supreme Court held, that the
reasoning of the High Court that when the Disciplinary Committee
differed from the finding of the inquiry officer it is imperative to
discuss the materials in detail and contest the conclusion of the
inquiry officer, is quite unsound and contrary to the established
principles in administrative law. The Disciplinary Committee was
neither an appellate nor a revisional body over the Inquiry Officer’s
report. It must be borne in mind that the inquiry is primarily intended
to afford the delinquent officer a reasonable opportunity to meet the
charges made against him and also to afford the punishing authority
with the materials collected in such inquiry as well as the views
expressed by the inquiry officer thereon. The findings of the inquiry
officer are only his opinion on the materials, but such findings are not
binding on the disciplinary authority as the decision-making authority
is the punishing authority and therefore that authority can come to its
own conclusion of course bearing in mind the views expressed by the
inquiry officer. But it is not necessary that the disciplinary authority
should “discuss materials in detail and contest the conclusions of the
inquiry officer”. Otherwise the position of the disciplinary authority
would get relegated to a subordinate level.
[High Court of Judicature at Bombay vs. Shashikanth S. Patil
2000(1) SLJ SC 98]
Standard of Proof in the Departmental Inquiry:
The standard of proof required in a departmental oral inquiry differs
materially from the standard of proof required in a criminal trial. The
Supreme Court has given clear rulings to that effect that a disciplinary
proceeding is not a criminal trial and that the standard of proof
required in a disciplinary inquiry is that of preponderance of
probability and not proof beyond reasonable doubt, which is the proof
required in a criminal trial.
[Union of India vs. Sardar Bahadur, 1972 SLR SC 355; State of AP
vs. Sree Rama Rao AIR 1963 SC 1723 and Nand Kishore Prasad vs.
State of Bihar, 1978(2) SLR SC 46]
The departmental authorities, if the inquiry is properly held, are the
sole judge of facts and if there is some legal evidence on which their
findings can be based, the adequacy or reliability of that evidence is
not a matter which can be permitted to be canvassed before the High
Court in a proceeding for a writ under Article 226 of the constitution.
[State of AP vs. S. Sreerama Rao AIR 1963 SC 1723]
If two views are possible, court shall not interfere by substituting its
own satisfaction or opinion for the satisfaction or opinion of the
authority exercising the power, in judicial review.
[Union of India vs. Harjeet Singh Sandhu, 2002(1) SLJ SC 1]
The power of judicial review is meant to ensure that the individual
receives fair treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court. The
disciplinary authority is the sole judge of facts. The Court/Tribunal in
its power of review does not act as appellate authority to re-appreciate
the evidence and to arrive at its own independent findings on the
evidence.
[B.C. Chaturvedi vs. Union of India, 1995(6) SCC 749]
Fresh Inquiry, in Case Proceedings are Quashed by Court on
Technical Grounds:
Where departmental proceedings are quashed by civil court on
technical grounds of irregularity in procedure and where merits of the
charge were never investigated, fresh departmental inquiry can be
held on same facts.
[Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh, AIR
1962 SC 1334]
Action against Disciplinary Authority for Lapses in Conducting
Proceedings:
In the case of that if a superior officer holds the inquiry in a very
slipshod manner or dishonestly, the State can certainly take action
against the superior officer and in an extreme case even dismiss him
for his dishonesty.
[Dwarakachand vs. State of Rajasthan, AIR 1958 RAJ 38]
The Central Administrative Tribunal, Madras held that disciplinary
authority can be proceeded against in disciplinary action for
misconduct of imposing a lenient penalty.
[S. Venkatesan vs. Union of India, 1999(2) SLJ CAT MAD 492]
Cross-Examination of a Witness:
The examination of a witness by the adverse party shall be called his
cross-examination. The purpose of the cross-examination is to test the
veracity of the witness. No evidence affecting a party is admissible
against that party unless the latter has had an opportunity of testing its
truthfulness by cross-examination.
[Maganlal vs. King Emperor AIR 1946 Nagpur 126]
Suspension of a Government Servant:
Utmost Caution to be exercised while ordering suspension.
[Subramanian vs. State of Kerala, (1973) SLR 521]
SC decisions setting out that the power is meant to be exercised
primarily in the interest of justice.
Court must be satisfied on the materials placed before it that granting
permission would serve administration of justice.
[Bansilal vs. Chandilal, AIR 1976 S.C. 370]
Duty of the court to see that the permission sought for is not on
grounds extraneous to the interest of justice. Ultimate guiding
principle must be interest of administration of justice.
[Balwant vs. Bihau, AIR 1977 S.C.2265]
Court has to see that executive function of prosecution is not
improperly exercised.
[Paswn vs. Bihan, AIR 1987 S.C.877]
Duty of the prosecution is to inform the Court, that Court must
exercise itself of the reasons which prompted itself to withdraw from
prosecution.
[Jain vs. State, AIR 1980 S.C.1510]
Broad ends of social justice may well include appropriate social
economic and political purposes.
[State of Punjab vs. Union, AIR 1992 S.C. 248]
Paramount reasons behind S.321 (CRPC) is that it should advance the
cause of justice.
[2005 (2) S.C.C. 377]
Sanction under the Prevention of Corruption Act, 1988 necessary
for Prosecution:
The question of sanction is of paramount importance for protecting a
public servant who has acted in good faith while performing his duty.
In order that the public servant may not be unnecessarily harassed on
a complaint of an unscrupulous person, it is obligatory on the part of
the executive authority to protect him... If the law requires sanction,
and the court proceeds against a public servant without sanction, the
public servant has a right to raise the issue of jurisdiction as the entire
action may be rendered void ab-initio.
[ANIL KUMAR & ORS Vs. M.K. AIYAPPA & ANR, 2013-TIOL-50-
SC-SERVICE]
Charge and Punishment for Passing Wrong Order in
Adjudication Proceedings:
An error in interpretation of law cannot be a ground for misconduct
unless it is deliberate and actuated by mala fides. If an error of law
would constitute misconduct, it would be difficult to independently
function for a quasi judicial officer. Such an action could always be
corrected in appeal.
[Zunjarrao Bhikaji Nagarkar vs. Union of India and others - 2002-
TIOL-130-SC-CX]
Disciplinary proceedings could be initiated against a government
servant concerned with regard to exercise of quasi judicial powers, if
the act or omission is such as to reflect on the reputation of the
government servant for his integrity or good faith or devotion to duty;
there is a prima facie material manifesting recklessness or misconduct
in discharge of the official duty; the officer had failed to act honestly
or in good faith or had omitted to observe the prescribed conditions
which are essential for the exercise of statutory power.
[Union of India and others vs. Shri K.K. Dhawan - 2002-TIOL-441-
SC-MISC-LB]
While performing judicial or quasi judicial functions, if the authority
acted negligently or omitted essential conditions prescribed for
exercise of such power, disciplinary proceedings could be initiated.
[Union of India and others vs. Duli Chand - 2006-TIOL-78-SC-
MISC-LB]
Ignoring the views of appellate authority amounts to harassment to
the assessee by failure of the officers to give effect to the orders of the
authorities higher to them in appellate hierarchy. In quasi-judicial
proceedings, the Revenue officers were held bound by the decisions
of the appellate authorities and the principles of judicial discipline
require the same to be maintained.
[Union of India and others vs. Kamlakshi Finance Corporation
Limited - 2002-TIOL-484-SC-CX-LB]
Passing of an order by the department and keeping it in the file is
not sufficient as it has to be issued to the employees:
The Hon'ble Supreme court in its Six Bench judgment in the case of
State of Punjab Vs. Amar Singh Harika 1996 AIR (SC) 1313. In para
11 it was held as under:-
"We are, therefore, reluctant to hold that an order of dismissal passed
by an appropriate authority and kept on its file without
communicating it to the officer concerned or otherwise publishing it
will take effect as from the date on which the order is actually written
out by the said authority; such an order can only be effective after it is
communicated to the officer concerned or is otherwise published". He
has also relied upon the judgment in Kunju Kesawan Vs. M.M. Philip
and Others AIR 1964 SC 164 wherein the Hon'ble Apex court held
that
"the dictionary meaning of the expression issued takes in the entire
process of sending notice as well as service thereof. The said word
used in section 34(1) of the wealth Tax Act itself was interpreted by
courts to mean 'served'." Further he has relied upon the judgment of
the Apex Court in the case of Commissioner of Wealth and Another
Vs. Kundan Lal Behari Lal AIR 1976 SC 1150 wherein the court held
that word "issued" occurring in Section 18(2A) of the Wealth Tax
would meant "served". The relevant part of the said judgment reads as
under:-
"2. The main question on which the High Court decided and which is
the only question urged before us for admitting the petition is that the
word 'issued' occurring in Sec. 18 (2A) of the Wealth-tax Act means
'served'. This decision is well supported not only by the decisions of
the High Court but also of this Court. In Banarsi Debi v. Income Tax
Officer, Calcutta, 53 ITR 100 = (AIR 1964 SC 1742) this Court
observed that the expressions 'issued' and 'served' are used as inter-
changeable terms and in the legislative practice of our country they
are some times used to convey the same idea. Accordingly, it was
held that the word 'issued' was not used in the narrow sense of 'sent'
but that the said expression had received before the Indian Income-tax
(Amendment) Act, 1959, a clear judicial interpretation. Subba Rao, J.
as he then was dealing with the purpose which the word 'issue' was
intended to serve, after referring to Sriniwas v. Income-tax Officer, 30
ITR 381 = (AIR 1956 All 657) cited in the judgment under attack and
a Bombay decision, observed at page 108, "the intention would be
effectuated if the wider meaning is given to the expression 'issued'.
The dictionary meaning of the expression issued takes in the entire
process of sending notices as well as service thereof. The said word
used in Section 34 (1) of the Act itself was interpreted by courts to
mean 'served'."
[State of Punjab Vs. Amar Singh Harika 1996 AIR (SC) 1313]
The competent authority has to approve the initiation of charge
and the charge itself:
Not only the competent authority has to approve the initiation of
charge but also the charge itself. The charge sheet/charge memo
having not been approved by the disciplinary authority was non est in
the eye of law.
[Union of India Vs. B.V. Gopinath JT 2013 (12) SC 392]
Effect of documents filed by department as Exhibits:
Mere tendering of documents is not sufficient to prove the charges.
The documents have to be proved by the prosecution witnesses who
are liable to be subjected to be examined by the Presenting Officer
and cross-examined by the delinquent official. The Apex Court has
considered the question "whether in absence of any oral evidence
having been tendered by the appellants, and especially in absence of
putting their own defence to the respondent during his cross
examination in the Court, what is the effect of documents filed by
appellants and marked as Exhibits". The findings of the Apex Court
was that mere admission of document in evidence does not amount to
its proof. On the other hand, documentary evidence is required to be
proved. Further, the witnesses who are examined in the departmental
enquiry shall be made available for cross-examination. Even though
the provisions of the Civil Procedure Code and the Evidence Act are
not strictly applicable in disciplinary proceedings, the principles
behind those provisions cannot be altogether ignored.
[L.I.C of India & Anr. vs. Ram Pal Singh Bisen 2011(1) SLJ 201]
Law courts are justified in Interfering at the earliest stage so as to
avoid the harassment and humiliation:
The Apex Court has held as, "law courts are otherwise justified in
Interfering at the earliest stage so as to avoid the harassment and
humiliation". It was held further that "it is the due process of law
which should permeate in the society and in the event of there being
any affectation of such process of law that law courts ought to rise up
to the occasion".
[State of Punjab Vs. V.K. Khanna and Others JT 2000 (Supp.3) SC
349]
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