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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