Full Judgment Text
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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
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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
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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
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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