Supreme Court of India An Advocate vs Bar Council Of India And Anr.

on 29 September,
1988 Equivalent citations: AIR 1989 SC 245, JT 1988 (4) SC 376, 1988 (2) SCALE 1362,
1989 Supp (2) SCC 25, 1988 Supp 3 SCR 361 Author: M Thakkar Bench: M Thakkar, B Ray
JUDGMENT M. Thakkar, J.

1. A hast of questions of seminal significance, not only for the Advocate who has been
suspended from practising his profession for 3 years on the charge of having
withdrawn a suit (as settled) without the instructions from his client, but also for the
members of the legal profession in general have arisen in this appeal (Appeal under
Section 38 of the Advocates Act, 1961):

(1) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?

(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of
guilt and a punishment of this nature can be inflicted on him?

(3) Whether the allegations and the finding of guilt require to be proved beyond reasonable
doubt?

(4) Whether the doctrine of benefit of doubt applies?

(5) Whether an Advocate acting bona fide and in good faith on the basis of oral instructions
given by some one purporting to act on behalf of his client, would be guilty of professional
misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable
negligence punishable as professional misconduct?

2. The suit was a suit for recovery of Rs. 30,098 (Suit No. 65/81 on the file of Additional
City Civil Judge, Bangalore). It appears that the complainant had entrusted the brief to
the appellant which he in his turn had entrusted to his junior colleague (respondent
No. 2 herein) who was attached to his Office and was practising along with him at his
office at the material time. At the point of time when the suit was withdrawn,
respondent No. 2 was practising on his own having set up his separate office. On the
docket of the brief pertaining to the suit, the appellant made an endorsement giving
instructions to withdraw the suit as settled. A sketch was drawn on the back of the
cover to enable the person carrying the brief to the junior colleague to locate his office
in order to convey the instructions as per the endorsement made by the appellant. The
allegations made by the complainant against the appellant are embodied in paragraphs
1 & 2 of his complaint:
3. The petitioner submits that he entrusted a matter to the Second Respondent to file a
case against Shri S. Anantaraju for recovery of a sum of Rs. 30,098 with Court costs
and current interest in Case No. O. 1965/81 on the file of the City Civil Judge at
Bangalore. The Petitioner submits that the said suit was filed by the first respondent
who was then a Junior of the Second respondent. The petitioner submits that the
matter in dispute in the suit was not settled at all and the first

respondent without the knowledge and without the instructions of the petitioner has filed a
memo stating that the matter is settled out of Court and got the suit dismissed and he has also
received half of the institution court fee within 10 days since the date of the disposal of the
suit. The petitioner submits that he has not received either the suit amount or the refund of
court fee and he is not aware of the dismissal of the suit as settled out of court.

2. The petitioner submits that when the case was posted for filing of written statement
itself the first respondent has filed such a memo stating that the suit was settled out of
Court. The petitioner submits that in fact, the respondents did not even inform the
petitioner about the dates of hearing and when the petitioner asked the dates of
hearing the respondents informed the petitioner stating that his presence is not
required in the Court since the case was posted for filing of written statement and
therefore, the petitioner did not attend the Court on that day. The petitioner submits
that when he enquired about the further date of hearing the respondents did not give
the date and said that they would verify the next date of hearing since they have not
attended the case since the case was posted for filing written statement by the
defendant. The petitioner submits that when he himself went to the Court and verified
he found to his great surprise that the suit is dismissed as settled out of court and latter
learnt that even the half of the institution court fee is also taken by the first respondent
within 10 days.

The version of the appellant may now be unfolded:

(1) One Gautam Chand (R. W. 3) has been a longstanding client of the appellant. Gautam
Chand had business dealings with the plaintiff Haradara and the Defendant Anantaraju.
Besides, Anantaraju executed an agreement dated 9.8 to sell his house property to Gautam
Chand. He received earnest money in the sum of rupees 35,000 from Gautam Chand.
Anantaraju, however, did not execute the sale deed within the stipulated period and during
the extended period. It was in these circumstances that Gautam Chand (RW 3) approached
the appellant for legal advice.

(2) It is the common case of parties that Gautam Chand introduced the complainant Haradara
to the appellant and his colleague Advocate respondent No. 2.

(3) The appellant caused the issue of notice dated 1,1981 (Ex. R/15) on behalf of Gautam
Chand addressed to the seller Anantaraju calling upon him to execute the sale dead. On the
same date, a notice was separately issued on behalf oF the complainant Haradara addressed to
Anantaraju demanding certain amounts due on the three 'self bearer cheques
aggregating Rs. 30,098 issued by Anantaraju in course of their mutual transactions. This
notice was issued by the Advocate respondent No. 2 acting on behalf of the complainant
Haradara.

(4) Gautam Chand (RW 3) and Haradara (PW 1) were friends. Anantaraju was their common
adversary. There was no conflict of interests as between Gautam Chand and Haradara.
Gautam Chand instructed the appellants and his colleague respondent No. 2. Ashok, that he
was in possession of the said cheques issued by Anantaraju and that no amount was actually
due from Anantaraju to the complainant Haradara. Gautam Chand was desirous of stops to
induce Anantaraju to execute the sale deed in his favour.

(1) In exercise of powers under Section 35 contained in Chapter V entitled "conduct of

Advocates", on receipt of a complaint against an Advocate (or suo motu) if the State
Bar Council has 'reason to believe' that any Advocate on its role has been
guilty of "professional or other misconduct". Disciplinary proceeding may be
initiated against him.

(2) Neither Section 35 nor any other provision of the Act defines the expression 'legal
misconduct' or the expression 'misconduct'.

(3) The Disciplinary Committee of the State Bar Council is authorised to inflict punishment,
including removal of his name from the rolls of the Bar Council and suspending him from
practise for a period deemed fit by it, after giving the Advocate concerned and the
'Advocate General' of the State an opportunity of hearing.

(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred
powers vested in a Civil Court in respect of certain matters including summoning and
enforcing attendance of any person and examining him on oath, the Act which enjoins the
Disciplinary Committee to "afford an opportunity of hearing' (Vide Section 35)
to the Advocate does not prescribe the procedure to be followed at the hearing.

(5) The procedure to be followed in an Enquiry under Section 35 is outlined in Part VII of the
Bar Council of India Rules (Published in Gazette of India on September 6, 1975 in Part III
Section 4, (pages 1671 to 1697)) made under the authority of Section 60 of the Act.

(6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned
parties that is to say the complainant and the concerned Advocate as also the Attorney
General or the Solicitor General or the Advocate General. It also enjoins that if it is
considered appropriate to take oral evidence the procedure of the trial of civil suits shall as far
as possible be followed (2).

3. At this juncture it is appropriate to articulate some basic principles which must inform
the disciplinary proceedings against members of the legal profession in proceedings
under Section 35 of the Advocates Act, read with the relevant Rules:

(i) essentially the proceedings are quasi-criminal in character inasmuch as a Member of the
profession can be visited with penal consequences which affect his right to practice the
profession as also his honour; under Section 35(3)(d) of the Act, the name of the Advocate
found guilty of professional or other misconduct can be removed from the State Roll of
Advocates. This extreme penalty is equivalent of death penalty which is in vogue in criminal
jurisprudence. The Advocate on whom the penalty of his name being removed from the roll
of Advocates is imposed would be deprived of practising the profession of his choice, would
be robbed of his means of livelihood, would be stripped of the name and honour earned by
him in the past and is liable to become a social aparthied. A disciplinary proceeding by a
statutory body of the Members of the profession which is statutorily empowered to impose a
punishment including a punishment of such immense proportions in quasi-criminal in
character;

(ii) as a logical corollary it follows that the Disciplinary Committee empowered to conduct
the enquiry and to inflict the punishment on behalf of the body, in forming an opinion must
be guided by the doctrine of benefit of doubt and is under an obligation to record a finding of
guilt only upon being satisfied beyond reasonable doubt. It would be impermissible to reach a
conclusion on the basis of preponderence of evidence or on the basis of surmise, conjuncture
or suspicion. It will also be essential to consider the dimension regarding menssrea;
 4. This proposition is hardly open to doubt or debate particularly having regard to the
view taken by this Court in L. Jaisinghani v. Naraindas N. Punjabi [1976] 3 SCR 354,
wherein Ray, CJ., speaking for the Court has observed:

In any case, we are left in doubt whether the complainant's version, with which he had
come forward with considerable delay was really truthful. We think that, in a case of this
nature, involving possible disbarring of the advocate concerned, the evidence should be of a
character which should leave no reasonable doubt about guilt. The Disciplinary Committee
had not only found the appellant guilty but had disbarred him permanently.

(Emphasis added)

(iii) in the event of a charge of negligence being levelled against an Advocate, the question
will have to be decided whether negligence simpliciter would constitute misconduct. It would
also have to be considered whether the standard expected from an Advocate would have to
answer the test of a reasonably equipped prudent practitioner carrying reasonable workload.
A line will have to be drawn between tolerable negligence and culpable negligence in the
sense of negligence which can be treated as professional misconduct exposing a Member of
the profession to punishment in the course of disciplinary proceedings. In forming the
opinion on this question the standards of professional conduct and etiquette spelt out in
Chapter 2 of Part VI of the Rules governing Advocates, framed under Section 60(3) and
Section 49(1)(g) of the Act, which form a part of the Bar Council of India Rules may be
consulted. As indicated in the preamble of the Rules, an Advocate shall, at all times compose
himself in a manner befitting his status as an Officer of the Court, a privileged member of the
community and a gentleman bearing in mind what may be lawful and moral for one who is
not a member of the bar may still be improper for an Advocate and that his conduct is
required to conform to the rules relating to the duty to the Court, the duty to the client, to the
opponent, and the duty to the colleagues, not only in letter but also in spirit.

It is in the light of these principles the Disciplinary Committee would be required to approach
the question as regards the guilt or otherwise of an Advocate in the context of professional
misconduct levelled against him. In doing so apart from conforming to such procedure as
may have been outlined in the Act or the Rules, the Disciplinary Authority would be expected
to exercise the power with full consciousness and awareness of the paramount consideration
regarding principles of natural justice and fair play.

5. The State Bar Council, after calling for the comments of the appellant in the context
of the complaint, straightaway proceeded to record the evidence of the parties. No
charge was framed

It would be extremely difficult for an Advocate facing a disciplinary proceeding to

effectively defend himself in the absence of a charge framed as a result of application of mind
to the allegations and to the question as regards what particular elements constituted a
specified head of professional misconduct.

6. The point arising in the context of the non-framing of issues has also significance. As
discussed earlier Rule 8(1) enjoins that "the procedure for the trial of Civil suits,
shall as far as possible be followed." Framing of the issues based on the
pleadings as in a Civil suit would be of immense utility. The controversial matters and
substantial questions would be identified and the attention focussed on the real and
 substantial factual and legal matters in contest. The parties would then become aware
of the real nature and content of the matters in issue and would come to know (1) on
whom the burden rests (2) what evidence should be adduced to prove or disprove any
matter (3) to what end cross examination and evidence in rebuttal should be directed.
When such a procedure is not adopted there exists inherent danger of miscarriage of
justice on account of virtual denial of a fair opportunity to meet the case of the other
side. We wish the State Bar Council had initially framed a charge and later on framed
issues arising out of the pleadings for the sake of fairness and for the sake of bringing
into forefront the real controversy.
7. In the light of the foregoing discussion the questions arising in the present appeal may
now to be examined. In substance the charge against the appellant was that he had
withdrawn a suit as settled without the instructions from the complainant. It was not
the case of the complainant that the appellant had any dishonest motive or that he had
acted in the matter by reason of lack of probity or by reason of having been won over
by the other side for monetary considerations or otherwise. The version of the
appellant was that the suit which had been withdrawn had been instituted in a
particular set of circumstances and that the complainant had been introduced to the
appellant for purposes of the institution of the suit by an old client of his viz. RW 3
Gautam Chand. The appellant was already handling a case on behalf of RW 3 Gautam
Chand against RW 4 Anantharaju. The decision to file a suit on behalf of the
complainant against RW 4 Anantharaju was taken in the presence of RW 3 Gautam
Chand. It was at the instance and inspiration of RW 3 Gautam Chand that the suit had
been instituted by the complainant, but really he was the nominee of Gautam Chand
and that the complainant himself had no real claim on his own. It transpires from the
records that it was admitted by the complainant that he was not maintaining any
account books in regard to the business and he was not an Income-tax assessee. In
addition, the complainant (PW 1) Haradara himself has admitted in his evidence that
it was Gautam Chand who had introduced him to the appellant, and that he was in fact
taken to the office of the appellant for filing the said suit, by Gautam Chand. It was
this suit which was withdrawn by the appellant. Of course it was withdrawn without
any written instructions from the complainant. It was also admitted by the
complainant that he knew the defendant against whom he had filed the suit for
recovery of Rs. 30,000 and odd through Gautam Chand and that he did not know the
defendant intimately or closely. He also admitted that the cheques used to be passed
in favour of the party and that he was not entitled to the entire amount. He used to get
only commission.
8. Since even on the admission of the complainant himself he was taken to the office of
the appellant for instituting the suit, by RW 3 Gautam Chand, and old client of the
appellant whose dispute with

the defendant against whom the complainant had filed the suit existed at the material time
and was being handled by the appellant. The defence of the appellant that he had withdrawn
the suit in the circumstances mentioned by him required to be considered in the light of his
admissions. The defence of the appellant being that the suit was withdrawn under the oral
instructions of the complainant in the presence of RW 3 Gautam Chand and RW 4
Anantharaju and inasmuch as RWs 3 and 4 supported the version of the appellant on oath, the
matter was required to be examined in this background. Assuming that the evidence of the
appellant corroborated by RWs 3 and 4 in regard to the presence of the complainant was not
considered acceptable, the question would yet arise as to whether the withdrawal on the part
of the appellant as per the oral instructions of RW 3 Gautam Chand who had taken the
complainant to the appellant for instituting the suit, would amount to professional
misconduct. Whether the appellant had acted in a bona fide manner under the honest belief
that RW 3 Gautam Chand was giving the instructions on behalf of the complainant required
to be considered. If he had done so in a bona fide and honest belief would it constitute
professional misconduct, particularly having regard to the fact that no allegation regarding
corrupt motive was attributed or established? Here it has to be mentioned that the appellant
had acted in an open manner in the sense that he had in his own hand made endorsement for
withdrawing the suit as settled and sent the brief to his junior colleague. If the appellant had
any oblique motive or dishonest intention, he would not have made the endorsement in his
own hand.

9. No doubt Rule 19 contained in Section 2 captioned 'Duty to the clients'

provides that an Advocate shall not act on the instructions of any person other than his
client or his authorised agent. If, therefore, the appellant had acted under the
instructions of RW 3 Gautam Chand bona fide believing that he was the authorised
agent to give instructions on behalf of the client, would it constitute professional
misconduct? Even if RW 3 was not in fact an authorised agent of the complainant, but
if the appellant bona fide believed him to be the authorised agent having regard to the
circumstances in which the suit came to be instituted, would it constitute professional
misconduct? Or would it amount to only an imprudent and unwise act or even a
negligent act on the part of the appellant? These were questions which directly arose
to which the Committee never addressed itself. There is also nothing to show that the
Disciplinary Committee has recorded a finding on the facts and the conclusion as
regards the guilt in full awareness of the doctrine of benefit of doubt and the need to
establish the facts and the guilt beyond reasonable doubt. As has been mentioned
earlier, no charge has been formulated and framed, no issues have been framed. The
attention of the parties was not focussed on what were the real issues. The appellant
was not specifically told as to what constituted professional misconduct and what was
the real content of the charge regarding the professional misconduct against him.
10. In the order under appeal the Disciplinary Committee has addressed itself to three
questions viz.

(i) Whether the complainant was the person who entrusted the brief to the appellant and
whether the brief was entrusted by the complainant to the appellant?

(ii) Whether report of settlement was made without instruction or knowledge of the
complainant?

(iii) Who was responsible for reporting settlement and instructions of the complainant?

It appears to us that the Bar Council of India must have an opportunity to examine the very
vexed and sensitive question which has arisen in the present matter with utmost care and
consideration, the question being of great importance for the entire profession. We are not
aware of any other matter where the apex body of the profession was required to consider
whether the bona fide act of an Advocate who in good faith acted under the instructions of
someone closely connected with his client and entertained a bona fide belief that the
instructions were being given under the authority of his client, would be guilty of misconduct.
It will be for the Bar Council of India to consider whether it would constitute an imprudent
act, an unwise act, a negligent act or whether it constituted negligence and if so a culpable
negligence, or whether it constituted a professional misconduct deserving severe punishment,
even when it was not established or atleast not established beyond reasonable doubt that the
concerned Advocate was acting with any oblique or dishonest motive or with mala fides. This
question will have to be determined in the light of the evidence and the surrounding
circumstances taking into account the doctrine of benefit of doubt and the need to record a
finding only upon being satisfied beyond reasonable doubt. In the facts and circumstances of
the present case, it will also be necessary to re-examine the version of the complainant in the
light of the foregoing discussion keeping in mind the admission made by the complainant that
he was not maintaining any books of accounts and he was not an Income-tax assessee and yet
he was the real plaintiff in the suit for Rs. 30,000 and odd instituted by him, and in the light
of the admission that it was RW 3 Gautam Chand who had introduced him to the appellant
and that he was in fact taken to the office of the appellant, for filing the suit, by RW 3
Gautam-Chand. The aforesaid question would arise even if the conclusion was reached that
the complainant himself was not present and had not given instructions and that the appellant
had acted on the instructions of RW 3 Gautam Chand who had brought the complainant to the
appellant's office for instituting the suit and who was a close associate of the
complainant. Since all these aspects have not been examined at the level of the Bar Council,
and since the matter raises a question of principle of considerable importance relating to the
ethics of the profession which the law has entrusted to the Bar Council of India, it would not
be proper for this Court to render an opinion on this matter without the benefit of the opinion
of the Bar Council of India which will accord close consideration to this matter in the light of
the perspective unfolded in this judgment both on law and on facts. We are reminded of the
high degree of fairness with which the Bar Council of India had acted in Mohindroo's
case. The Advocate concerned was suspended from practice for four years. The Bar Council
had dismissed the appeal. Supreme Court had dismissed the Special Leave Petition
summarily. And yet the whole matter was reviewed at the instance of the Bar Council and
this Court was persuaded to grant the review. A passage extracted from Mohindroo's
case deserves to be quoted in this connection:

37. We find some unusual circumstances facing us. The entire Bar of India are of the
opinion that the case was not as satisfactorily proved as one should be and we are also
of the same opinion. All processes of the Court are intended to secure justice and one
such process is the power of review. No doubt frivolous reviews are to be discouraged
and technical rules have been devised to prevent persons from reopening decided
cases. But as the disciplinary committee themselves observed there should not be too
much technicality where professional honour is involved and if there is a manifest
wrong done, it is never too late to undo the wrong. This Court possesses under the
Constitution a special power of review and further may pass any order to do full and
effective justice. This Court is

moved to take action and the Bar Council of India and the Bar Association of the Supreme
Court are unanimous that the appellant deserves to have the order disbarring him from
practice set aside.

12. We have therefore no doubt that upon the matter being remitted to the Bar Council of
India it will be dealt with appropriately in the light of the aforesaid perspective. We
accordingly allow this appeal, set aside the order of the Bar Council in so far as the
appellant is concerned and remit the matter to the Bar Council of India. We, however,
wish to make it clear that it will not be open to the complainant to amend the
complaint or to add any further allegation. We also clarify that the evidence already
recorded will continue to form part of the record and it will be open to the Bar
 Council of India to hear the matter afresh on the same evidence. It is understood that
an application for restoration of the suit which has been dismissed for default in the
City Civil Court at Bangalore has been made by the complainant and is still pending
before the Court. It will be open to the Bar Council of India to consider whether the
hearing of the matter has to be deferred till the application for restoration is disposed
of. The Bar Council of India may give appropriate consideration to all these
questions.
13. We further direct that in case the judgment rendered by this Court or any part thereof
is reported in Law Journals or published elsewhere, the name of the appellant shall
not be mentioned because the matter is still subjudice and fairness demands that the
name should not be specified. The matter can be referred to as an Advocate v. The
Bar Council or in re. an Advocate without naming the appellant.
14. The appeal is disposed of accordingly. No order regarding costs.