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PETITIONER: V.P. KUMARAVELU

       Vs.

RESPONDENT: THE BAR COUNCIL OF INDIA,NEW DELHI & ORS.

DATE OF JUDGMENT:       04/02/1997

BENCH: S.C. AGRAWAL, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF FEBRUARY, 1997 Present:               Hon’ble Mr. Justice S.C. Agrawal               Hon’ble Mrs. Justice Sujata V. Manohar      A.T.M. Sampath and V. Balaji, Advs. for the appellant      A.  Mariarputham   and  Ms.   Aruna   Mathur   and   V. Krishnamurthy, Advs. for the Respondent Nos. 2-3                       J U D G M E N T      The following Judgment of the Court was delivered: Mrs. Sujata V. Manohar, J.      These appeals arise from a common order dated 15.5.1986 passed by  the Disciplinary  Committee of the Bar Council of India in  D.C.I.T. Case  Nos.48 and  49 of  1985. These  two cases pertain  to the  appellant and were transferred to the appellant and were transferred to the Disciplinary Committee of the  Bar Council of India under the provisions of Section 36B(1) of  the  Advocates  Act,  1961  as  the  Disciplinary Committee of the Bar Council of Tamil Nadu could not dispose of these cases within the prescribed period of one year.      On or  about 21st  of October,  1978, the appellant was appointed as City Government Pleader in all the Civil Courts constituted in  Madras other  than the High Court of Madras. The work  was spread  over several  courts in Madras and the appellant as  the city  Government Pleader  was required  to conduct all the civil matters pending in the civil courts of Madras except  the High  Court, on  behalf of the Government and also  to give  his opinion on these matters from time to time when required. The appellant was allowed the assistance of juniors  who were  not appointed  by the  Government. The respondent was provided with staff.      The first  complaint which  was filed by the Commission and  Secretary,   Government  of   Tamil  Nadu  against  the appellant before  the  Disciplinary  Committee  of  the  Bar Council of  Tamil Nadu  bearing D.C. Case No. 48/1985 was in respect of Suit No.400 of 1978 on the file of the City Civil Court at  Madras. The  Government Pleader  was instructed to appear on  behalf of  the State Government in that case. The Memo of  Appearance had been filed by the earlier Government Pleader. The records of the case had been sent to the Office of the  Government Pleader  and he  had also  been asked  to

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prepare a written statement. However, when the appellant was appointed as  Government Pleader, a fresh Memo of Appearance on his  behalf had  not been filed in the said suit nor were the papers put up before him. As a result, on 28.6.1979, the suit was  decreed ex parte against the State. An application was thereafter  moved by  the appellant  to set aside the ex parte order.  The court  set aside  the ex  parte  order  on condition that  the Government  should pay Rs.20/- as costs. However, the  cost  was  not  deposited.  As  a  result  the application to set aside the ex parte order was dismissed on 27-9-1979. Consequently  the suit  was decreed ex parte with costs.      This suit  had been  filed by  the Travancore  Textiles Pvt. Ltd.  against the  State of  Tamil Nadu  relating to  a lease of  land admeasuring  1240 sq.ft.  forming part  of  a channel. The plaintiff had prayed for a declaration that the annual rent of Rs.3609.66 as also the Municipal taxes levied were illegal.  The plaintiff  had also  made  a  prayer  for refund of  Rs.25,575.40 with  interest at  the rate 12% p.a. and for  a further declaration that he need not pay any rent after 30.6.1974. The complainant alleged that as a result of the gross  negligence on  the  part  of  the  appellant  the Government of Tamil Nadu had suffered substantial loss.      The appellant contended that since the office staff had not put  up the  papers of  this case  before  him,  it  was through inadvertence that the suit was decreed ex parte. The Bar Council  of India  has, however,  noted that at the time when an application for setting aside the ex parte order was filed the  appellant must  have known  about the pendency of the case,  and the serious consequences that would follow if the order  for payment  of costs were not complied with. The Bar Council  has held  that for  this  lapse  the  appellant cannot raise  the plea  that the  staff was  negligent. Now, although the  application for  setting aside  the  ex  parte order is  filed by  the appellant,  it is not clear from the record whether  the appellant  had  personally  appeared  in court for setting aside the ex parte order or was personally aware of  or was  appraised of  the order of costs which had been while setting aside the ex parte order.      In fact,  the Bar Council of India has noted mitigating circumstance which  go to show that blame cannot be attached solely  to  the  appellant.  It  has  noted  that  from  the correspondence which  is brought on record, it is clear that at no  point of  time the papers pertaining to the case were placed before the appellant except for moving an application for setting  aside the  ex parte order. It is also not known whether the  application was actually moved by the appellant himself or  through a  junior. It  is not  clear whether the order which  was passed  on this  application for payment of costs was brought to the notice of the appellant either. The Bar Council  has also  noted that  after the  summons in the case was  served on  the State  of Tamil  Nadu  through  the Secretary to  the Government  of Tamil  Nadu in June 1978, a letter was sent on 27th of June, 1978 by the then Government Pleader. Thereafter  the Collector of Madras vide his letter dated 20th  of September,  1978,  sent  details  and  office remarks on the plaintiff’s claim. At this time the appellant was not  Government Pleader.  These papers  were received by his predecessor who made an endorsement on the letter of the Collector of Madras to the effect that remarks/statements be prepared. It  is also  not clear  to whom  this  matter  was assigned. According  to the  distribution of  work, copy  of which has been placed on record by the appellant, it was the duty of  G. Jagannathan,  the then  Assistant to  submit the records of  the case  of the  City  Government  Pleader  for

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preparation  of   the  written   statement.  In  the  letter addressed by  the Collector  of Madras  he had  directed the Executive Deputy  Tehsildar, Egmore  to meet  the Government advocate with  the concerned  file and  to render  necessary assistance in  preparing the draft written statement. But it appears that  no one  attended the  office of the Government Pleader with  the concerned  file for  preparing the written statement.      After the  appellant  took  charge  as  the  Government Pleader, he  had also  notified that  representatives of the departments  of   the  Government   should  remain   present personally with  files on  various dates  of hearing so that suitable instruction can be made available to the Government Pleader for  conducting the  case. But this instruction also does not  seem  to  have  been  followed.  It  is  in  these circumstances that the case of the State went unrepresented.      The Bar  Council has  said that the office staff of the appellant was  also responsible for misleading the appellant and keeping  him in  the dark.  The Government  also did not care to depute a responsible officer to attend the office of the Government Pleader.      After noting  these circumstance  the  Bar  Council  of India has imposed a "lighter" punishment of severe reprimand after noting  that the appellant is a fairly senior advocate in the  State of  Tamil Nadu and has a good reputation and a good standing at the Bar.      The next  complaint No.17  of 1984  is in  respect of a suit filed by an employee of the Directorate of Education of the State  of Tamil  Nadu challenging  his  date  of  birth. Summons was  forwarded to  the appellant along with a letter date 24.9.1979 informing him that the date of hearing in the case was  10.10.1979. There  is an  endoresment made  by the office of  the Government Pleader on that letter. Thereafter another letter  of 25.9.1979  was received  by the office of the Government  Pleader from  the Directorate  of Education, Madras on  which an  endorsement was  made, "remarks/written statement to  be prepared".  These remarks  are in  the same handwriting in  which the endoresment on the previous letter is made.  However, no memorandum for appearance was filed in that  suit  on  behalf  of  the  State  of  Tamil  Nadu.  On 26.10.1979 an  ex parte  decree came  to be  passed in  that suit.      The appellant has contended that the office had not put up these  papers before  him. Therefore,  there had  been  a lapse in  attending to  this case. Here also the Bar Council of India  has accepted that there was no deliberate lapse on the part  of the  appellant. His  only lapse was not to have kept the  office in order. The Bar Council has held, "It may be that  due to  rush of  work office might have kept him in dark and  the papers  might not have been put up......". The finding against the appellant, therefore, is that he was not able to  control his  office on  account of rush of work and also because  the staff  which was  allotted to him had been negligent in  the performance  of its duties and had not put up the  papers in  the concerned  cases before him to enable him to  take appropriate action. The appellant has been held guilty of  "constructive negligence", and the Bar Council of India has reprimanded him.      Looking to  all the  circumstances  the  appellant  was negligent as  he had  failed to attend to the two cases. His client had to suffer ex parte decrees. There is, however, no finding of  any mala  fides on  the part of the appellant or any deliberate  inaction on his part in not attending to the two cases.  Will his negligence or "constructive negligence" as  the   respondent-Bar  Council   puts   it,   amount   to

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professional misconduct?  Whether negligence  will amount to professional misconduct or not will depend upon the facts of each case.  Gross negligence  in  the  discharge  of  duties partakes of  shades of  delinquency  and  would  undoubtedly amount to  professional misconduct. Similarly, conduct which amounts to  dereliction of  duty by  an advocate towards his client or  towards his  case would  amount  to  professional misconduct.  But   negligence  without  moral  turpitude  or delinquency may not amount to professional misconduct.      In the  case of  In re  a vakil (1926 ILR 49 Mad. 523), Coutts Trotter,  C.J., said,  "negligence by  itself is  not professional misconduct;  into that offence there must enter the element  of moral  delinquency.  Of  that  there  is  no suggestion here,  and we  are, therefore,  able to  say that there is  no case  to investigate,  and that  no  reflection adverse to  his professional honour rests upon Mr.M." In the case of  P.D. Khandekar v. Bar Council of Maharashtra & Ors. (AIR 1984 SC 110 at 113), this Court said, "There is a world of difference  between the  giving of  improper legal advice and the  giving  of  wrong  legal  advice.  Mere  negligence unaccompanied by  any moral  delinquency on  the part  of  a legal practitioner  in the  exercise of  his profession does not  amount  to  professional  misconduct...........For  and advocate to  act towards  his  client  otherwise  than  with utmost good  faith is  unprofessional. When  an advocate  is entrusted with  a brief  he is  expected to  follow norms of professional ethics  and try  to protect  interests  of  his client in  relation to whom he occupies a position of trust. Counsel’s paramount  duty is  to the  client. When  a person consults  a  lawyer  for  his  advice  he  relies  upon  his requisite experience,  skill and  knowledge as  a lawyer and the lawyer  is expected  to give  proper  and  dispassionate legal advice  to  the  client  for  the  protection  of  his interests".      In the  present case,  there is  failure on the part of the appellant  to discharge  his duties  towards his client. This failure,  however, is  not deliberate. It is on account of heavy  pressure of work coupled with lack of diligence on the part  of his  staff as well as on the part of his client in not  sending a  responsible person  with  papers  to  the office  of   the  Government  pleader.  However,  while  the appellant  cannot  be  held  responsible  for  his  client’s failure to attend the office, the appellant cannot shift the blame entirely  on his  staff. As  the head of the office it was his  responsibility  to  make  sure  that  the  work  is properly attended  to and  the staff  performs its functions properly  and  diligently.  The  appellant  has,  therefore, rightly been  held guilty  of negligence.  However,  in  the absence of  any moral  turpitude or delinquency on his part, we cannot  sustain the  finding of  the Bar council of India that his conduct in the facts and circumstances of this case amounts to  professional misconduct.  In  fact  the  various mitigating circumstances  have been noted by the Bar council of India itself. The negligence on the part of the appellant in these  circumstances cannot  be construed as professional misconduct.      The  appeals   are,  therefore,  allowed.  There  will, however, be no order as to costs.