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CASE NO.:

Appeal (civil) 200 of 2000

PETITIONER:

HARISH CHANDRA TIWARI

RESPONDENT:

BAIJU

DATE OF JUDGMENT: 08/01/2002

BENCH:

K.T. THOMAS & S.N. PHUKAN

JUDGMENT:

JUDGMENT

2002 (1) SCR 83

The Judgment of the Court was delivered by

THOMAS, J. We are sad that the Disciplinary Committee of the Bar Council of

India (for short 'the Disciplinary Committee') despite, being the some

statutory body entrusted with the upkeep of the probity of legal profession

in India opted to treat a very grave professional misconduct in a

comparatively lighter vein. The Disciplinary Committee held an advocate

guilty of breach of trust for misappropriating the asset of a "poor"

client. But having held so the Disciplinary Committee has chosen to impose

a punishment of suspending the advocate from practice for a period of three

years.

The delinquent advocate filed this appeal under Section 38 of the Advocates

Act, 1961 (for short 'the Act'). We told him that in the event of this

Court upholding the finding of misconduct he should show cause why the

punishment shall not be enhanced to removal of his name from the roll of

the Bar Council of the State concerned. Notice on that aspect has been

accepted by Mr. M.M. Kashyap, learned counsel for the appellant.

We issued notices to the Bar Council of India and also to the Bar Council

of UP. Neither has chosen to enter appearance in this matter and hence we

heard learned counsel for the appellant-advocate above.

Appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar

Council of the State of UP in May 1982 and has been practising since then,

mainly in the Courts at Lakhimpur Kheri District in U.P. Respondent Baiju

engaged the delinquent advocate in a land acquisition case in which the

respondent was a claimant for compensation. The Disciplinary Committee has

described the respondent as "an old, helpless, poor illiterate person".

Compensation of Rs. 8118 for the acquisition of the land of the said Baiju

was deposited by the State in the Court. Appellant applied for releasing

the amount and as per orders of the Court he withdrew the said amount on

2.9.1987. But he did not return it to the client to whom it was payable nor

did he inform the client about the receipt of the amount. Long thereafter,

when the client came to know of it and after failing to get the amount

returned by the advocate, a complaint was lodged by him with the Bar

Council of the State for initiating suitable disciplinary action against

the appellant.

On 12.7.1988, appellant filed a reply to the said complaint before the Bar

Council of the State. He admitted having been engaged by the respondent as

his counsel in the aforesaid land acquisition case, he also admitted that

he had withdrawn a sum of Rs. 8118 from the Court. But he adopted a defence

that he had returned the amount of the client after deducting his fees and

expenses.

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On 3.8.1988, an affidavit purporting to be that of the respondent Baiju was

filed by the appellant before the State Bar Council in which it is stated

that a compromise had been arrived at between him and his client and that

no further action need be taken on the complaint filed by the respondent.

The Disciplinary Committee of the State Bar Council was not prepared to act

on the said affidavit without verifying it from the client concerned. Hence

they summoned the respondent and confronted him with the said affidavit.

The respondent totally disowned the said affidavit, repudiated the alleged

compromise between him am? the appellant and denied having received any

amount from the appellant-advocate.

The complaint and the proceedings later stood transferred to the Bar

Council of India by virtue of Section 36B(2) of the Act. The Disciplinary

Committee after conducting the inquiry, came to the conclusion that the

affidavit dated 3.8.1988, purported to have been sworn to by the

respondent, was a forged one and that the application appended therewith

was fabricated. The Disciplinary Committee observed as followed :

"Thus, the conduct of the respondent and his evasive reply and his evasive

vague deposition duly makes out that after taking the cheque from the Land

Acquisition Officer in his own name, the respondent has failed to make the

payment to the complainant who is illiterate, poor person and his money has

been misappropriated by the respondent-advocate."

In this appeal appellant first pleaded that he is not liable to be punished

at all and then contended alternatively that he has given the money to the

client subsequently. But the factual position is so strong against the

appellant that he could not show a single circumstance to accept his

defence that he had paid the amount to the client. The finding of the

Disciplinary Committee that the delinquent advocate "has withdrawn the

compensation of Rs. 8118 and has not paid it to the complainant for the

last more than 11 years and is thus guilty of wrong professional conduct

and has maligned the reputation of the noble profession and has committed

breach of trust which an advocate enjoys", does not require any

interference in this appeal.

Now, we have the function to decide as to the quantum of punishment to be

awarded to the delinquent appellant-advocate, since we feel that the

punishment awarded is not adequate in proportion to the gravity of the

misconduct. Section 38 of the Act empowers the Supreme Court to "pass such

order including an order varying punishment awarded by the Disciplinary

Committee of the Bar Council of India as it deems fit". The only condition

for varying the punishment awarded by the Bar Council of India is that if

such variation is to prejudicially affect the appellant he should be given

a reasonable opportunity of being heard. In the present appeal we gave

notice to the learned counsel for the appellant to show cause why the

punishment should not be enhanced to removal from the roll of the Bar

Council of the State. Learned counsel for the appellant addressed arguments

on that score.

Three different punishments are envisaged in Section 35 of the Act: (1)

reprimand the advocate; (2) suspend the advocate from practice for such

period as it may deem fit; (3) remove the name of the advocate from the

State roll of advocates.

In determining the punishment to be awarded by the Disciplinary Committee

on proved misconduct in each case, the Committee should weigh various

factors. One of the them is the acute need to cleanse the legal profession

from those who are prone to misappropriating the money of the clients.

Deterrence is thus a prominent consideration. This is particularly

necessary at a time when the legal profession has become crowded as it is

today, without there being any affective filtering process at the admission

stage. Secondly, to keep up the professional standards it is necessary that

nobody should form the impression that once a person is admitted to the

legal profession he would be immune to any punitive measures and is free to

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indulge in nefarious or detestable activities. The only authority which can

effectively maintain the probity of the legal profession is the

Disciplinary Committee of the Bar Council, either of the State or of India.

The proper message which should go to all members of the legal profession

is that they are all being watched, regarding their professional

activities, through binoculars by the Bar Council of the State as well as

by the Bar Council of India and that their Disciplinary Committees would

not acquiesce any professional delinquency with flee bite punishment.

Among the different types of misconduct envisaged for a legal practitioner

misappropriation of the client's money must be regarded as one of the

gravest. In his professional capacity the legal practitioner has to collect

money from the client towards expenses of the litigation, or withdraw money

from the Court payable to the client or take money of the client to be

deposited in Court. In all such cases, when the money of the client reaches

his hand it is a trust. If a public servant misappropriates money he is

liable to be punished under the present Prevention of Corruption Act, with

imprisonment which shall not be less than one year. He is certain to be

dismissed from service. But if an advocate misappropriates money of the

client there is no justification in de-escalating the gravity of the

misdemeanour. Perhaps the dimension of the gravity of such breach of trust

would be mitigated when the misappropriation remained only for a temporary

period. There may be justification to award a lesser punishment in a case

where the delinquent advocate returned the money before commencing the

disciplinary proceedings.

In the present case the misappropriation remained unabated even after the

disciplinary proceedings commenced and it continued even till now as the

delinquent advocate did not care to return even a single pie to the client.

The misconduct of the appellant-advocate became more aggravated when he

determined to forge an affidavit in the name of his client, which he

produced before the Disciplinary Committee in order to defraud his client

and to deceive the Disciplinary Committee to believe that he and his client

had settled the dispute by making a late payment to his client.

By retaining such advocate on the roll of the legal profession it would be

unsafe to the profession. The situation in this case thus warrants the

punishment of removal of his name from the roll of advocates.

Learned counsel for the appellant cited two decisions of this Court in

which the punishment awarded has not been escalated to removal from the

roll. One is Prahalad Saran Gupta v. Bar Council of India & Anr., [1997] 3

SCC 585. In that case the finding against the delinquent advocate was that

he retained a sum of Rs 1500 without sufficient justification from 4.4.1978

till 2.5.1978 and he deposited the amount in the Court on the latter date,

without disbursing the same to his client. The said conduct was found by

this Court as "not in consonance with the standards of professional ethics

expected from a senior member of the profession". On the said fact

situation this Court imposed a punishment of reprimanding the advocate

concerned.

The other case cited by the learned counsel is B.R. Mahalkari v. Y.B.

Zurange, [1997] 11 SCC 109. The findings in that case is that the advocate

retained the amount of Rs. 1176, though before the commencement of the

disciplinary proceedings he sent the said amount to the client. After

holding that the advocate is guilty of misconduct this Court upheld the

punishment of suspension from practice for a period of three years.

The facts in the aforecited decisions would speak for themselves and the

distinction from the facts of this case is so glaring that the misconduct

of the appellant in the present case is of a far graver dimension. Hence

the said two decisions are not of any help to the appellant for mitigation

of the quantum of punishment.

In the result we dispose of this appeal by imposing the punishment of

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removal of the name of the appellant from the roll of the advocates. He

would thus stand debarred from practising in any Court or before any

authority or person in India.