http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:

Appeal (civil) 5476 of 1999

PETITIONER:

Noratanmal Chouraria

RESPONDENT:

M.R. Murli & Anr.

DATE OF JUDGMENT: 16/04/2004

BENCH:

CJI, S.B. Sinha & S.H. Kapadia.

JUDGMENT:

J U D G E M E N T

S.B. SINHA, J :

INTRODUCTION:

An order of the Bar Council of India dated 27.2.1999

passed in BCI TR No.73/1997 refusing to enquire into a

complaint of purported misconduct on the part of the

respondent herein is in question in this appeal

preferred by the Appellant herein under Section 38 of

the Advocates Act, 1961.

BACKGROUND FACTS:

The relationship between the appellant and the

respondents herein is that of landlords and tenant. A

rent control proceeding was initiated by the

respondents against the appellant. While the rent

control proceeding was pending in the small causes

court, they allegedly misconducted themselves by reason

of following acts of omissions and commissions:-

(1) On 8.10.1993 when the appellant came out of the

court hall of the said court after attending

the appeal pending there, the first respondent

allegedly came from behind and hit him on his

back and ran away.

(2) On 26.10.1993 while the appellant was coming

out of the court hall, the first respondent

accompanied with some rowdy elements threatened

to kill him. The matter was allegedly reported

to the police on the same day.

(3) On 1.3.1995 when the learned Xth Judge left for

his chamber during the lunch break and while

the appellant was leaving the court hall along

with his advocate Shri S.Vijayranjan, the first

respondent kicked him on the knee of his left

leg in the court room with an intention to

cause injury and further asked him not to

appear in the court for evidence.

The disciplinary committee of the Bar Council of

Tamil Nadu upon receipt of the said complaint of the

appellant herein initiated a proceeding. The matter

ultimately appeared to have been transferred to the

disciplinary committee of the Bar Council of India.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

Impugned Order of the Bar Council:

The disciplinary committee of the Bar Council of

India noticed that in relation to the aforementioned

acts of omission and commission on the part of the

respondents, no criminal proceeding was initiated by

filing a complaint petition by the appellant. No

charge-sheet had also been filed by the police in

relation to the occurrence dated 26.10.1993 wherefor an

FIR had been lodged. It was further accepted that the

first respondent had not been appearing in the

aforementioned rent control proceedings as an advocate

but as a party in person. Having regard to the fact

that till the date of passing of the impugned order

neither the appellant herein produced any document to

substantiate any follow up action on his part in

respect of complaint filed by him before the police

authority, nor did he file any private complaint, the

committee was prime facie of the view that the factum

of occurrence of the said incidents are not reliable.

Further, it was noticed that the first respondent

appeared in the said litigation not as advocate but as

litigant in person.

Submissions:

Mr.S.B.Upadhyay, learned counsel appearing on

behalf of the appellant, inter alia, would submit that

under Section 35 of the Advocates Act an advocate on

the roll of the Bar Council can be proceeded against

for committing any misconduct which may not be confined

to professional misconduct; the Bar Council grossly

erred in passing the impugned order. Strong reliance

in support of the said contention has been placed on a

decision of this court in D An Advocate of the Supreme

Court reported in [1955 (2) SCR 1006]. The learned

counsel would contend that having regard to the fact

that the first respondent assaulted the complainant,

asked him not to proceed with the case and on the third

occasion kicked him as a result whereof he fell down

are clear pointers to the fact that such acts are not

expected of a member of a legal profession and, thus,

the same must be held to be acts of misconduct.

Learned counsel in support of said contention relied

upon Hikmat Ali Khan V. Ishwar Prasad Arya and Ors.[

1997 (3) SCC 131] and N.G.Dastane V. Shrikant S.Shivde

and Anr. [2001 (6) SCC 135]. Our attention has also

been drawn to the preamble of the Bar Council of India

Rules.

Mr.T.Raja learned counsel appearing on behalf of

the respondents would, on the other hand, submit that

the appellant herein had been harassing the respondent

by initiating false cases and in fact the complaint in

question against the respondents is the eighth one and

no relief had been granted in the other seven

complaints. Mr.Raja would urge that it is improbable

that if an act of the nature complained of had taken

place in a court room, the same would not be brought to

the notice of the presiding officer. Neither any

private complaint having been filed nor any proceeding

in the criminal courts having been initiated by the

appellant herein and further no evidence in support

thereof having been produced before the Bar Council,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

the learned counsel would contend that the impugned

orders should not be interfered with by this court.

Misconduct:

Misconduct has not been defined in the Advocates

Act, 1961. Misconduct, inter alia, envisages breach of

discipline, although it would not be possible to lay

down exhaustively as to what would constitute conduct

and indiscipline, which, however, is wide enough to

include wrongful omission or commission whether done or

omitted to be done intentionally or unintentionally. It

means, "improper behaviour intentional wrong doing or

deliberate violation of a rule of standard or

behaviour":

Misconduct is said to be a transgression of some

established and definite rule of action, where no

discretion is left except what necessity may demand; it

is a violation of definite law.

In Delhi Cloth & General Mills Co. Ltd. vs. Its

Workmen reported in (1969) 2 LLJ 755, Shah, J. stated

that misconduct spreads over a wide and hazy spectrum

of industrial activity; the most seriously subversive

conducts rendering an employee wholly unfit for

employment to mere technical default covered thereby.

This Court in State of Punjab and Others vs. Ram

Singh Ex. Constable, reported in 1992 (4) SCC 54,

noticed:-

"5. Misconduct has been defined in Black's

Law Dictionary, sixth Edition at Page 999

thus:-

"A Transgression of some established

and definite rule of action, a forbidden act,

a dereliction from duty, unlawful behaviour,

wilful in character, improper or wrong

behaviour, it synonyms are misdemeanor,

misdeed, misbehaviour, delinquency,

impropriety, mismanagement, offense, but not

negligence or carelessness".

Misconduct in offence has been defined

as :-

"Any unlawful behaviour by a public officer

in relation to the duties of his office,

wilful in character. 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.Ramanath Aiyar's Law Lexicon, Reprint Edition 1987

at Page 821 defines 'misconduct 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

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 is left, except what

necessity may demand and carelessness,

negligence and unskillfulness are

transgressions of some established, but

indefinite, 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 indefinite.

Misconduct in office may be defined as

unlawful behaviour or neglect by a public

official, by which the right of party have

been affected."

Thus it could be seen that the word

'misconduct' though not capable of precise of

definition, on reflection receives its

conotation 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, it must be

improper or wrong behaviour; unlawful

behaviour, wilful 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-manner 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."

[See also Probodh Kumar Bhowmick Vs. University

of Calcutta (1994 (2) Calcutta Law Journal 456 and B.C.

Chaturvedi Vs. Union of India [1995 (6) SCC 749 ].

Section 35 of the Advocates Act, however, refers

to imposition of punishment for professional or other

misconduct. A member of legal profession which is a

noble one is expected to maintain a standard in

dignified and determined manner. The standard required

to be maintained by the member of the legal profession

must be commensurate with the nobility thereof. A

Lawyer is obligated to observe those norms which make

him worthy of the confidence of the community in him as

an officer of the court. This Court in Bar Council,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

Maharashtra V. M.V.Dabholkar [ AIR 1976 SCC 242 ]

observed:-

"The high moral tone and the considerable

public service the bar is associated with and

its key role in the developmental and

dispute-processing activities and, above all,

in the building up of a just society and

constitutional order has earned for it a

monopoly to practise law and an autonomy to

regulate its own internal discipline."

Although the power of the Bar Council is not

limited, the thrust of charge must be such which would

necessitate initiation of disciplinary proceedings. A

professional or other misconduct committed by a member

of the profession should ordinarily be judged qua

profession. To determine the quantum of punishment

which may be imposed on an advocate, the test of

proportionality shall be applied which would also

depend upon the nature of the acts complained of. No

universal rule thus can be laid down as regard

initiation of a proceeding for misconduct of a member

of the profession.

In 'M' an Advocate (supra), however, this court

emphasized the requirement of maintaining a high

standard stating:-

"As has been laid down by this Court in

the matter of 'G', a Senior Advocate of the

Supreme Court (A) (supra) the Court, in

dealing with cases of professional misconduct

is "not concerned with ordinary legal

rights, but with the special and rigid rules

of professional conduct expected of and

applied to a specially privileged class of

persons who, because of their privileged

status, are subject to certain disabilities

which do not attach to their men and which do

not attach even to them in a non-professional

character ...he ( a legal practitioner) is

bound to conduct himself in a manner

befitting the high and honourable

professional to whose privileges he has so

long been admitted; and if he departs from

the high standards which that professional

has set for itself and demands of him in

professional matters, he is liable to

disciplinary action."

Application of the principle to the present case:

The disciplinary committee of the Bar Council of

India is a statutory body. At the first instance the

duty to arrive at a finding of facts in respect of

complaint made against a member of the legal profession

is upon it. This court although enjoys extensive and

wide jurisdiction under Section 38 of the Act, the

opinion of the Bar Council shall carry great weight.

The appellant herein had lodged complaint with the

State Bar Council on 5.3.1995 in relation to the 3

incidents allegedly occurred on 8.10.1993, 26.10.1993

and 1.3.1995.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

The Disciplinary Committee had considered the

conduct of the appellant herein in order to judge as to

whether the acts on the part of the respondents amount

to misconduct.

There was absolutely no reason as to why the

appellant did not make any complaint to the State Bar

Council immediately of the incidents which took place

on 8.10.1993 and 26.10.1993. If his contention to the

effect that in relation to the incident dated

26.10.1993 he had lodged a first information report

there was absolutely no reason as to why he did not

pursue the same seriously. It is, as has been noticed

by the Bar Council of India, accepted that the police

filed final forms but despite the same the appellant

did not file any protest petition or initiate any other

proceeding before criminal court. In relation to the

incident dated 1.3.1995 which allegedly took place

inside the court room it was expected of the appellant

or his advocate, who is said to be a retired district

judge, to bring the same to the notice of the court.

Even in relation to the incidents allegedly occurred on

8.10.1993 and 26.10.1993 no complaint was made before

the presiding officer of the court. No proceeding was

initiated in relation to the purported incident on

1.3.1995.

Can in the aforementioned fact situation, the

findings of the Bar Council, be said to be so

irrational meriting interference by this court is the

question? We are of the opinion that it is not. We

may further place on record that on a querry made by us

to Mr. Upadhyay as to whether any other incident had

taken place after 1.3.1995, the learned counsel

categorically stated that no such incident had

thereafter taken place. We are, therefore, of the

opinion that the matter need not be pursued further.

Case Laws:

Let us now consider the decision of this court

cited at the Bar. In 'M' an Advocate (supra), this

court was dealing with a case where an advocate who had

been appearing in person had been an accused before a

magistrate where his conduct was found to be such which

amounted to commission of professional misconduct. He

continuously and persistently attempted to hold up the

trial and did everything in his power to bring the

administration of justice in contempt. In the

aforementioned fact-situation, it was held that the

High Court was right in taking action against the

advocate concerned.

In Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3)

SC 131] the concerned advocate assaulted his opponents

with a knife. He was prosecuted and found guilty of

commission of an offence under Section 307 of the IPC.

In the aforementioned situation, it was held that the

advocate deserves the extraordinary punishment of

removal of his name from the state rolls of advocates.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

In N.G. Dastane V. Shrikant S.Shivde & Anr.[2001

(6) SC 135] an advocate in order to defend one of the

accused persons before a magistrate sought for

adjournments repeatedly and on 4.12.1993 an adjournment

was sought on the premise that he was unable to speak

on account of a throat infection and continuous cough

but the complainant came across the said advocate

"forcefully and fluently" arguing a matter before

another court situated in the same building.

Thereafter a complaint was lodged wherein a prime facie

case was found to have been made out. This court

directed the Bar Council of India to deal with the

complaint.

The aforesaid decisions of this court are not

applicable to the fact of the present case.

Conclusion:

We are, therefore, of the opinion that no case has

been made out for interfering with the impugned order.

This appeal is dismissed. But in the facts of the

case there shall be no order as to costs.