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“An advocate shall, at all times, comport 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 that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned.”-The Bar is not a private guild, like that of ‘barbers, butchers and candlestick-makers’ but, by bold contrast, a public institution committed to public justice and pro bono publico service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice (‘The Practice of Law is a Public Utility’ — ‘The Lawyer, The Public and Professional Responsibility’ by F. Raymond Marks et al — Chicago American Bar Foundation, 1972, p. 288-289). A glance at the functions of the Bar Council, and it will be apparent that a rainbow of public utility duties, including legal aid to the poor, is cast on these bodies in the national hope that the members of this monopoly will serve society and keep to canons of ethics befitting an honourable order. If pathological cases of member misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem and who, but the Bar Council, is more concerned with and sensitive to this potential disrepute the few black sheep bring about? The official heads of the Bar i.e. the Attorney-General and the Advocates-General too are distressed if a lawyer “stoops to conquer” by resort to soliciting, touting and other corrupt practices.”- the respondent-advocate was involved in a very serious professional misconduct by filing vakalatnamas without any authority and later on filing fictitious compromises. The professional misconduct committed by the respondent is extremely grave and serious.-deserves punishment commensurate with the degree of misconduct that meets the twin objectives – deterrence and correction.-Moreover, the respondent-advocate had been previously found to be involved in a professional misconduct and he was reprimanded. Having regard to all these aspects, in our view, it would be just and proper if the respondent-advocate is suspended from practice for a period of three years from today. We order accordingly. 19. The order passed by the Disciplinary Committee, BCI is modified and the respondent-advocate is awarded punishment for his professional misconduct, as indicated above. Civil Appeal is allowed to that extent with no order as to costs. 20. The Registrar shall send copies of the order to the Secretary, State Bar Council, Uttar Pradesh and the Secretary, Bar Council of India immediately.

REPORTABLE

English: New York Times courtroom sketch of Ka...

English: New York Times courtroom sketch of Katy Metz under cross examination during the trial of ex-Alderman Thomas Cleary (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6363 OF 2004

 
Narain Pandey …. Appellant

Versus
Pannalal Pandey
….Respondent
—–

 
JUDGMENT

R.M. Lodha, J.

 
The complainant is in appeal under Section 38 of the Advocates
Act, 1961 (for short, ‘1961 Act’) aggrieved by the judgment and order dated
20.6.2004 passed by the Disciplinary Committee of the Bar Council of India.
2. The appellant filed a complaint against the respondent, an
advocate practicing in Tehsil Gyanpur, District Sant Rabidass Nagar,
Bhadohi under Section 35 of the 1961 Act before the Bar Council of Uttar
Pradesh (for short, ‘BCUP’) alleging that he is involved in number of false
cases by forging and fabricating documents including settlement documents
without the knowledge of the parties in the Consolidation Court. The
complainant alleged that besides the cases of other people, in the case of
the complainant also without his knowledge and other co-khatedars, the
respondent filed a compromise deed by forging and fabricating their
signatures and obtained orders from the Consolidation Court. The
complainant gave the details of four cases in this regard. The complainant
also stated in the complaint that respondent has been earlier held guilty
of professional misconduct and, in this regard, referred to the judgment in
the matter of Diwakar Prasad Shukla v. Panna Lal Pandey. The complainant
prayed that the respondent be proceeded with the professional misconduct
and be punished by cancelling his license to practice.
3. The complaint was referred to its Disciplinary Committee by
BCUP. The respondent filed written statement to the complaint and denied
the allegations made in the complaint. In his reply, the respondent denied
that he has forged signatures or created any fictitious compromise
documents. He set up the plea that the complaint has been filed against him
due to enmity.
4. The complainant filed his affidavit in support of the complaint
and in the course of enquiry examined seven witnesses. The complainant also
produced documentary evidence. On the other hand, although the respondent
filed his affidavit in support of the reply but neither he offered himself
for cross-examination nor he let in any evidence in opposition to the
complaint and in support of his reply.
5. The Disciplinary Committee, BCUP considered the evidence
tendered by the complainant at quite some length and observed that all the
witnesses produced by the complainant had supported the allegations made in
the complaint; the witnesses had stated that compromises which were filed
by the respondent-advocate were not signed by them and they had never
engaged the respondent as their advocate to conduct their cases in the
Consolidation Court. The Disciplinary Committee, BCUP also observed that
the respondent-advocate did not cross-examine the witnesses of the
complainant on this point. On careful analysis of the evidence, the
Disciplinary Committee, BCUP concluded as follows :
“From the above discussion and from the perusal of documents it
is clear that accused Advocate is involved in a very serious
professional misconduct by filing vakalatnamas without any
authority and later on filing fictitious compromise which
adversely affect the interest of the parties concerned……..”

 

6. Insofar as respondent’s past conduct was concerned, the
Disciplinary Committee, BCUP noted thus :-
“From the perusal of judgment passed by State Bar Council and
Bar Council of India, it is established that State Bar Council
had taken lenient view by reprimanding the accused Advocate
which was modified by Bar Council of India who affirmed the
reprimand order and also imposed Rs. 1000/- as cost, failing
which accused Advocate will be suspended for the period of six
months. The matter involve in the said case is that accused
Advocate had filed a fictitious compromise in the Court of
Consolidation Officer. Present complaint is also about farzy
vakalatnama and fictitious compromise.

7. The Disciplinary Committee, BCUP having regard to the
respondent’s previous professional misconduct and the finding that he was
involved in a very serious professional misconduct by filing vakalatnamas
without any authority and later on filing fictitious compromises, passed an
order dated 28.5.2002 debarring him from practice for a period of seven
years from the date of the judgment.
8. The respondent-advocate, challenged the order of the
Disciplinary Committee, BCUP in appeal under Section 37 of the 1961 Act
before the Disciplinary Committee of the Bar Council of India (BCI). The
Disciplinary Committee, BCI heard the parties and held that respondent
herein (appellant therein) had acted negligently in the matters before the
Chakbandi Officer. However, the Disciplinary Committee, BCI did not agree
with the finding of the Disciplinary Committee, BCUP that the advocate had
forged the signatures. The Disciplinary Committee, BCI, accordingly,
modified the order of punishment and reprimanded him and also imposed a
cost of Rs. 1,000/- to be paid by him to the BCI towards the Advocates
Welfare Fund and if the amount was not paid within one month from the date
of the receipt of the order he would be suspended from practicing for a
period of six months. The order passed by the Disciplinary Committee, BCI
on 20.6.2004 is the subject matter of appeal.
9. The consideration of the matter by the Disciplinary Committee,
BCI is clearly flawed. It overlooked the most vital aspect that seven
witnesses tendered in evidence by the complainant had stated clearly and
unequivocally that the respondent-advocate had filed forged and fabricated
vakalatnamas on their behalf and they had not filed any compromise in
Consolidation Court. The respondent-advocate had not at all cross-examined
these witnesses on the above aspect although they were cross-examined on
other aspects. There was ample documentary evidence as well which proved
the allegations made in the complaint that the respondent-advocate had
filed forged and fabricated vakalatnamas as well as compromises in diverse
proceedings before the Consolidation Court. The Disciplinary Committee, BCI
accepted the oral submission of the respondent-advocate (appellant therein)
without realizing that the respondent even did not offer himself for cross-
examination in respect of the affidavit that he filed in support of his
reply. As a matter of fact, the respondent-advocate did not tender any
evidence whatsoever in rebuttal. Mere oral submission unsupported by oral
or documentary evidence on behalf of the respondent-advocate did not
justify reversal of thorough and well-considered finding by the
Disciplinary Committee, BCUP on analysis of the oral and documentary
evidence let in by the complainant in support of the complaint. It is true
that the complainant and the respondent-advocate are uncle and nephew and
some dispute regarding the property amongst the family members of the
appellant and the respondent was going on but on that basis the well-
reasoned and carefully written finding recorded by the Disciplinary
Committee, BCUP was not liable to be reversed by the Disciplinary
Committee, BCI.
10. The finding recorded by the Disciplinary Committee, BCI, “this
Committee on perusal of the allegations made in the complaint does not
agree with the findings of appearing on behalf of both the sides and
forging the signatures arrived at by the Disciplinary Committee of the
State Bar Council of Uttar Pradesh and the order wherein the appellant is
debarred from practice for seven years” cannot be sustained.
11. On careful consideration of the entire material placed on
record, we are of the considered view that the findings recorded by the
Disciplinary Committee, BCUP that the respondent-advocate was involved in a
very serious professional misconduct by filing vakalatnamas without any
authority and later on filing fictitious compromises which adversely
affected the interest of the parties concerned deserve to be restored and
we order accordingly.
12. The question now is of award of just and proper punishment. As
noted above, the Disciplinary Committee, BCUP debarred the respondent from
practice for a period of seven years. The Disciplinary Committee, BCI in
the impugned order while holding that the respondent should have been
careful in dealing with the matters before the Chakbandi Officer and that
he had acted negligently modified the order of punishment awarded by the
Disciplinary Committee, BCUP and reprimanded the respondent-advocate
(appellant therein) and also imposed cost and default punishment, as noted
above.
13. The award of punishment for a professional misconduct is a
delicate and sensitive exercise. The Bar Council of India Rules, as amended
from time to time, have been made by the BCI in exercise of its rule making
powers under the 1961 Act. Chapter II, Part VI deals with standards of
professional conduct and etiquette. Its preamble reads as under :
“An advocate shall, at all times, comport 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 that
what may be lawful and moral for a person who is not a member of
the Bar, or for a member of the Bar in his non-professional
capacity may still be improper for an Advocate. Without
prejudice to the generality of the foregoing obligation, an
Advocate shall fearlessly uphold the interests of his client, and
in his conduct conform to the rules hereinafter mentioned both in
letter and in spirit. The rules hereinafter mentioned contain
canons of conduct and etiquette adopted as general guides; yet
the specific mention thereof shall not be construed as a denial
of the existence of other equally imperative though not
specifically mentioned.”

14. The matters relating to professional misconduct of advocates
under the 1961 Act have reached this Court from time to time. It is not
necessary to deal with all such cases; reference to some of the cases shall
suffice. In Bar Council of Maharashtra v. M.V. Dabholkar and others[1], a
seven-Judge Bench of this Court was concerned with an appeal filed under
Section 38 of the 1961 Act by the Bar Council of Maharashtra and the main
controversy therein centered around the meaning of the expression “person
aggrieved”. While dealing with the said controversy, V.R. Krishna Iyer, J.
in his concurring opinion made the following weighty observations with
regard to the Bar and its members:

“52. The Bar is not a private guild, like that of ‘barbers,
butchers and candlestick-makers’ but, by bold contrast, a public
institution committed to public justice and pro bono publico
service. The grant of a monopoly licence to practice law is
based on three assumptions: (1) There is a socially useful
function for the lawyer to perform, (2) The lawyer is a
professional person who will perform that function, and (3) His
performance as a professional person is regulated by himself not
more formally, by the profession as a whole. The central
function that the legal profession must perform is nothing less
than the administration of justice (‘The Practice of Law is a
Public Utility’ — ‘The Lawyer, The Public and Professional
Responsibility’ by F. Raymond Marks et al — Chicago American Bar
Foundation, 1972, p. 288-289). A glance at the functions of the
Bar Council, and it will be apparent that a rainbow of public
utility duties, including legal aid to the poor, is cast on
these bodies in the national hope that the members of this
monopoly will serve society and keep to canons of ethics
befitting an honourable order. If pathological cases of member
misbehaviour occur, the reputation and credibility of the Bar
suffer a mayhem and who, but the Bar Council, is more concerned
with and sensitive to this potential disrepute the few black
sheep bring about? The official heads of the Bar i.e. the
Attorney-General and the Advocates-General too are distressed if
a lawyer “stoops to conquer” by resort to soliciting, touting
and other corrupt practices.”

15. In V.C. Rangadurai v. D. Gopalan and Others[2], a majority
judgment in an appeal filed under Section 38 of the 1961 Act speaking
through V.R. Krishna Iyer, J. observed as follows:

“4. 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 — the common 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 deviant geared to correction. Serve the people free and
expiate your sin, is the hint.
5. Law’s nobility as a profession lasts only so long as the
members 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.
6. 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.
xxx xxx xxx
11. 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 [Dickerson : The Interpretation and Application of
Statutes, p. 238], 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.
12. 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.”

 
16. In M. Veerabhadra Rao v. Tek Chand[3], a three-Judge Bench of
this Court considered the relevant provisions contained in Bar Council of
India Rules with reference to standards of professional conduct and
etiquette and also sub-section (3) of Section 35 of 1961 Act. In paragraph
28 (Pg. 586) of the Report, this Court observed thus:
“28. Adjudging the adequate punishment is a ticklish job and it
has become all the more ticklish in view of the miserable
failure of the peers of the appellant on whom jurisdiction was
conferred to adequately punish a derelict member. To perform
this task may be an unpalatable and onerous duty. We, however,
do not propose to abdicate our function howsoever disturbing it
may be.”

 
16.1. Then in paragraph 30 (Pg. 587), this Court observed that the
legal profession was monopolistic in character and this monopoly itself
inheres certain high traditions which its members are expected to upkeep
and uphold. The Court then referred to the decision of this Court in M.V.
Dabholkar1 and observed as follows:

“If these are the high expectations of what is described as a
noble profession, its members must set an example of conduct
worthy of emulation. If any of them falls from that high
expectation, the punishment has to be commensurate with the
degree and gravity of the misconduct……..”.

16.2. Then in paragraph 31 of the Report (Pgs. 588-589) this Court
held as under:
“31. Having given the matter our anxious consideration, looking
to the gravity of the misconduct and keeping in view the motto
that the punishment must be commensurate with the gravity of the
misconduct, we direct that the appellant M. Veerabhadra Rao
shall be suspended from practice for a period of five years that
is up to and inclusive of October 31, 1989. To that extent we
vary the order both of the Disciplinary Committee of the State
Bar Council as well as the Disciplinary Committee of the Bar
Council of India.”
17. In a recent decision of this Court in Dhanraj Singh Choudhary
v. Nathulal Vishwakarma[4], this Court speaking through one of us (R.M.
Lodha, J.) in paragraph 23 of the Report (Pg. 747) observed as follows:
“23. The legal profession is a noble profession. It is not a
business or a trade. A person practising law has to practise in
the spirit of honesty and not in the spirit of mischief-making
or money-getting. An advocate’s attitude towards and dealings
with his client have to be scrupulously honest and fair.”

17.1. In paragraph 24 (Pg. 747), the observations made in V.C.
Rangadurai2 were quoted and then in paragraph 25 of the Report (Pg. 747),
the Court held as under :
“25. Any compromise with the law’s nobility as a profession is
bound to affect the faith of the people in the rule of law and,
therefore, unprofessional conduct by an advocate has to be
viewed seriously. A person practising law has an obligation to
maintain probity and high standard of professional ethics and
morality.”

 
17.2. The Court in para 32 (Pg. 748) observed that the punishment for
professional misconduct has twin objectives – deterrence and correction.

18. In light of the above legal position, we now consider the
question of punishment. We have restored the finding of the Disciplinary
Committee, BCUP viz., that the respondent-advocate was involved in a very
serious professional misconduct by filing vakalatnamas without any
authority and later on filing fictitious compromises. The professional
misconduct committed by the respondent is extremely grave and serious. He
has indulged in mischief-making. An advocate found guilty of having filed
vakalatnamas without authority and then filing fictitious compromises
without any authority deserves punishment commensurate with the degree of
misconduct that meets the twin objectives – deterrence and correction.
Fraudulent conduct of a lawyer cannot be viewed leniently lest the interest
of the administration of justice and the highest traditions of the Bar may
become casualty. By showing undue sympathy and leniency in a matter such
as this where the advocate has been found guilty of grave and serious
professional misconduct, the purity and dignity of the legal profession
will be compromised. Any compromise with the purity, dignity and nobility
of the legal profession is surely bound to affect the faith and respect of
the people in the rule of law. Moreover, the respondent-advocate had been
previously found to be involved in a professional misconduct and he was
reprimanded. Having regard to all these aspects, in our view, it would be
just and proper if the respondent-advocate is suspended from practice for a
period of three years from today. We order accordingly.
19. The order passed by the Disciplinary Committee, BCI is
modified and the respondent-advocate is awarded punishment for his
professional misconduct, as indicated above. Civil Appeal is allowed to
that extent with no order as to costs.

20. The Registrar shall send copies of the order to the Secretary,
State Bar Council, Uttar Pradesh and the Secretary, Bar Council of India
immediately.
………………………J.
(R.M. Lodha)
…..……………………J.
(Anil R.
Dave)

NEW DELHI
DECEMBER 10, 2012.
———————–
[1] (1975) 2 SCC 702
[2] (1979) 1 SCC 308
[3] 1984 (Supp) SCC 571
[4] (2012) 1 SCC 741

———————–
14

 

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