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PETITIONER: AN ADVOCATE

       Vs.

RESPONDENT: B.B. HARADARA & ORS.

DATE OF JUDGMENT29/09/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1989 AIR  245            1988 SCR  Supl. (3) 361  1989 SCC  Supl.  (2)  25 JT 1988 (4)   376  1988 SCALE  (2)1362

ACT:     Advocate’s Act--Sec. 38 Professional misconduct standard of proof--Required of--Section 35--Procedure to be  followed at the inquiry by Bar Council.

HEADNOTE:     The  appellant is an Advocate. Gautam Chand was  one  of his  old clients. The complainant-Respondent No.  l  engaged the appellant on being introduced by Gautam Chand to file  a Suit  against  Shri S. Anantaraju for recovery of a  sum  of Rs.30,098 with Court costs and interest in the Court of City Civil Judge at Bangalore. The appellant passed on the papers to  his junior advocate to file the Suit which he  did.  The complainant’s  allegation is that the matter in  dispute  in the  suit  had  not been settled at all  and  the  appellant without  the knowledge and without his instructions filed  a memo  in  the Court to the effect that the matter  has  been settled  out of Court and accordingly got the  suit  dismis- sed  and  also received half of the institution  court  fee; about  which  the  complainant was not  aware,  nor  was  he informed  by the appellant. The complainant’s allegation  is that  he was not informed about the dates of hearing of  the suit;  when  inquired he was simply told that  the  case  is posted  for filing written-statement where his presence  was not  neces- sary. When nothing was heard by the  complainant from  the  appellant  about the progress  of  his  suit,  he personally  made  inquiries and came to learn to  his  great surprise  that  the  suit  in  question  had  in  fact  been withdrawn as settled out of Court.     The  version  of the appellant Advocate is  that  Gautam Chand,  his  old  client, had  business  dealings  with  the plaintiffs,   Haradara  (Complainant)  and   the   defendant Anantaraju.  Anantaraju  had also executed an  agreement  on 9.8.80  to  sell  his house property  to  Gautam  Chand.  He received  earnest money amounting to Rs.35,000  from  Gautam Chand.  Anantaraju  however did not execute  the  sale  deed within  the  specified  time. Gautam  Chand  approached  the appellant  for legal advice. The appellant caused the  issue of notice to Anantaraju calling upon him to execute the sale deed. A notice was also issued on behalf of the  complainant calling  upon  the defendant  Anantaraju  demanding  certain

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amounts   due  on  3  self  bearer  cheques   amounting   to                                                   PG NO 362 Rs..30,098   issued  by  him  in  course  of  their   mutual transactions.     Gautam Chand and the complainant were friends having  no conflict of interests Gautam Chand instructed the  appellant and  his junior Ashok that he was in possession of the  said cheques issued by Anantaraju and that no amount was actually due  from Anantaraju to Haradara Complainant.  Gautam  Chand desired  Anantaraju  to execute the  sale  deed.  Anantaraju executed  the  sale  deed on 27.11.81 in  favour  of  Gautam Chand, even though an order of attachment before judg-  ment in respect of the said property was in existence. Consequent on  the execution of the sale deed, the object of  the  suit was achieved. The complainant did not at any time object. In this  back ground, the appellant had reasons to believe  the information re: settlement of dispute  conveyed by the three together  on 9.12.81. Acting on the said informa- tion,  the appellant asked Ashok his erstwhile junior to take steps  to withdraw  the  suit,  which  he  did  on  10.12.8l  as   per instructions received from the appellant noted on the docket of the brief.     The  state Bar Council, called for the comments  of  the appellant  relating to the complaint. No charge  was  framed specifying  the  nature  and  content  of  the  professional misconduct attributed to the appellant. Nor were any  issues framed  or  prints  for  determination  formulated.  Instead thereof the Bar Council proceeded to record evidence. As the case  could  not  be concluded within the  time  limit,  the matter  came to be transferred to the Bar Council of  India. The  Bar  Council off India addressed itself  to  the  three questions, viz. (i) Whether the complainant was the person who entrusted the brief  to the appellant and whether the brief was  entrusted by the complainant to the appellant. (ii)   Whether  report  of  settlement  was   made   without instructions or knowledge of the complainant? (iii)  Who  was  responsible for  reporting  settlement  and instructions of the complainant ?     The  Disciplinary Committee of the Bar Council of  India after  considering  the  matter found  appellant  guilty  of professional misconduct and suspended him for practising his profession  for 3 years on the charge of having withdrawn  a suit (not settled) without the instruction of the clients.                                                   PG NO 363     The  appellant  has  filed  the appeal  u,s  38  of  the Advocates   Act.   The   following   questions   arose   for consideration by this Court. (i)  Whether  a  specific charge  should  have  been  framed apprising  the appellant of the true nature and  content  of the professional misconduct ascribed to him: (ii)  Whether the doctrine of benefit of doubt and the  need of  establishing the basic allegations were present  in  the mind of the Disciplinary Authority in recording the  finding of  guilt  or in determining the nature and  extent  of  the punishment inflicted on him; (iii)  Whether in the absence of the charge and  finding  of dishonesty against him the appellant could be held guilty of professional  misconduct even on the assumption that he  had acted on the instructions of a person not authorised to  act on  behalf of his client if he was acting in good faith  and in  a bona fide manner. Would it amount to lack of  prudence or   non-culpable   negligence  or   would   it   constitute professional misconduct. Disposing of the appeal, the Court,

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   HELD: That the appellant was not afforded reasonable and fair  Opportunity  of showing cause inasmuch as he  was  not apprised of the exact content of the professional misconduct attributed  to  him and was not made aware  of  the  precise charge he was required to rebut. [376E-F]     That  in  recording the finding of facts  on  the  three questions.  referred  to  above. the  applicability  of  the doctrine  of benefit of doubt and the need  for  established the facts beyond reasonable doubt were not realized. Nor did the  Disciplinary  Committee  consider the  question  as  to whether the- facts established that the appellant was acting with  bona  fides or mala fides whether  the  appellant  was acting with any oblique and dishonest motive. whether  there was  any mens rea; whether the facts constituted  negligence and  if so whether it constituted culpable  negligence.  Nor has  the Disciplinary Committee considered the  question  as regards  the  quantum  of punishment in  the  light  of  the aforesaid  considerations  and  the  exact  nature  of   the professional  misconduct established against the  appellant. [376F-H; 377A]     The  Court, in view of the fact that "the matter is  one of the ethics of the profession which the law has  entrusted to the Bar Council of India" and it is in their opinion,  "a case  which  must receive due weight" did  not  consider  it                                                   PG NO 364 appropriate  to examine the matter on merits  without  first having the opinion of the Bar Council of India. [377D]     Remanding  the  matter to the Bar Council of  India  the Court directed it to consider whether it would constitute an imprudent act, an unwise act, a negligent act or whether  it constituted  negligence and if so a culpable negligence,  or whether  it constituted a professional misconduct  deserving severe  punishment, even when it was not established  or  at least  not  established  beyond reasonable  doubt  that  the concerned Advocate was acting with any oblique or  dishonest motive or with mala fides. [377H; 378A]     L.D.  Jaisinghani  v.  Naraindas N.  Punjabi,  [1976]  3 S.C.R.  354 and Re: M. v. Distt. Judge Delhi, [1956]  S.C.R. P. 811(814), referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  316  ot 1987.     From  the  Judgment and Order dated  31.12.1986  of  the Disciplinary Committee of the Bar Council of India in B.C.I. Transfer Case No. 407 of 1985. S.S. Javali and Raju Ramachandra for the Appellant. Ravinder  Bhat,  N.  Ganapathy and  Promod  Swarup  for  the Respondents . The Judgment of the Court was delivered by     THAKKAR, J. A hast of questions of seminal significance, not  only  for  the Advocate who  has  been  suspended  from practising  his  profession  for 3 years on  the  charge  of having   withdrawn   a  suit  (as   settled)   without   the instructions  from his client, but also for the  members  of the legal profession in general have arisen in this appeal: 1. Appeal under section 38 of the Advocates Act, 1961.     (1)  Whether a charge apprising him specifically of  the precise nature and character of the professional  misconduct ascribed to him needs to be framed?     (2)  Whether in the absence of an allegation or  finding of  dishonesty  or  mens  rea  a  finding  of  guilt  and  a punishment

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                                                 PG NO 365 of this nature can be inflicted on him?     (3)  Whether  the allegations and the finding  of  guilt require to be proved beyond reasonable doubt?     (4) Whether the doctrine of benefit of doubt applies?     (5)  Whether  an Advocate acting bona fide and  in  good faith  on the basis of oral instructions given by  some  one purporting  to act on behalf of his client, would be  guilty of professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable negligence punishable as professional misconduct?     The suit was a suit for recovery of Rs.30,098 (Suit  No. 65/81   on  the  file  of  Additional  City   Civil   Judge, Bangalore).  It appears that the complainant  had  entrusted the  brief  to  the  appellant which  he  in  his  turn  had entrusted to his junior colleague (respondent No. 2  herein) who was attached to his Office and was practising along with him at his office at the material time. At the point of time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his separate office. On the  docket of  the brief pertaining to the suit, the appellant made  an endorsement  giving  instructions to withdraw  the  suit  as settled.  A  sketch was drawn on the back of  the  cover  to enable the person carrying the brief to the junior colleague to locate his office in order to convey the instructions  as per  the endorsement made by the appellant. The  allegations made  by the complainant against the appellant are  embodied in paragraphs 1 & 2 of his complaint:     1. The petitioner submits that he entrusted a matter  to the  Second  Respondent  to  file a  case  against  Shri  S. Anantaraju  for  recovery of a sum of Rs.30,098  with  Court costs  and current interest in Case No. O.S. 1965/81 on  the file  of the City Civil Judge at Bangalore.  The  Petitioner submits that the said suit was filed by the first respondent who  was  then  a  Junior  of  the  Second  respondent.  The petitioner  submits that the matter in dispute in  the  suit was  not settled at all and the first respon-  dent  without the knowledge and without the instructions of the petitioner has  filed a memo stating that the matter is settled out  of Court  and got the suit dismissed and he has  also  received half  of the institution court fee within l0 days since  the                                                   PG NO 366 date  of  the disposal of the suit. The  petitioner  submits that  he  has  not received either the suit  amount  or  the refund of court fee and he is not aware of the dismissal  of the  suit as settled out of court.     2. The  petitioner submits that when the case was posted for  filing of written statement itself the first respondent has filed  such a memo stating that the suit was settled out of  Court.   The  petitioner  submits  that  in  fact,   the respondents  did not  even inform the petitioner  about  the dates of hearing and  when the petitioner asked the dates of hearing the respondents informed the petitioner stating that his  presence is not  required in the Court since  the  case was posted for filing of  written statement and therefore  . the  petitioner did not attend  the Court on that  day.  The petitioner submits that when he  enquired about the  further date  of hearing the respondents  did not give the date  and said that they would verify the next  date of hearing  since they  have not attended the case since the  case was  posted for   filing  written  statement  by  the  defendant.    The petitioner  submits that when he himself went to  the  Court and verified he found to his great surprise that the suit is dismissed  as  settled out of court and latter  learnt  that even the  half of the institution court fee is also taken by

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the first  respondent within 10 days. The version of the appellant may now be unfolded:     (i)  One  Gautam Chand (R.W.3) has been  a  longstanding Client  of the appellant. Gautam Chand had business  dealing with   the plaintiff Haradara and the Defendant  Anantaraju. Besides. Anantaraju executed an agreement dated 9.8.1980  to sell his house property to Gautam Chand. He received earnest money  in  the  sum of rupees  35,000  from  Gautam   Chand. Anantaraju,  however, did not execute the sale deed   within the stipulated period and during the extended period It  was in  these circumstances that Gautam Chand (RW 3)  approached the appellant for legal advice.     (2)  It is the common case of parties that Gautam  Chand introduced the complainant Haradara to the appellant and his colleague Advocate respondent No. 2     (3)  The  appellant  caused the issue  of  notice  dated 1.6.1981  (Ex. R/15) on behalf of Gautam Chand addressed  to                                                   PG NO 367 the  seller Anantaraju calling upon him to execute the  sale dead.  On the same date, a notice was separately  issued  on behalf  ot the complainant Haradara addressed to  Anantaraju demanding  certain  amounts due on the three  ‘self’  bearer cheques  aggregating,  Rs.30,098  issued  by  Anantaraju  in course of their mutual transactions. This notice was  issued by  the  Advocate respondent No.2 acting on  behalf  of  the complainant Haradara.     (4)  Gautam  Chand  (RW  3) and  Haradara  (PW  1)  were friends. Anantaraju was their common adversary. There was no conflict of interests as between Gautam Chand and  Haradara. Gautam  Chand  instructed the appellants and  his  colleague respondent  No. 2. Ashok, that he was in possession  of  the said  cheques  issued by Anantaraju and that no  amount  was actually  due from Anantaraju to the  complainant  Haradara. Gautam  Chand was desirous of stops to induce Anantaraju  to execute the sale deed in his favour.     (5) A suit being O.S. No. 1965 of 1981 was instituted on behalf  of the complainant  Haradara claiming on  amount  of Rs.  30,000  and odd, from the defendant Anantaraju  on  the basis  of  the  aforesaid  cheques.  It  was  instituted  on 30.6.1981. An interlocutary application was moved on  behalf of Haradara by respondent No. 2 as his Advocate seeking  the attachment   before  judgment  of  the  immovable   property belonging  to the defendant Anantaraju. The property was  in fact the subject of an agreement to sell between  Anantaraju and  Gautam  Chand (RW 3) The Court  initially  declined  to grant  an  order  of attachment. In order  to  persuade  the Court,  certain  steps were taken through  the  said  Gautam Chand.  He caused the Publication of a notice  stating  that the  property  in  question was the  subject  matter  of  an agreement  between Anantaraju and himself and it should  not be dealt with by anyone. The publication of this notice  was relied  upon  subsequently  on  behalf  of  the  complainant Haradara  by  his  advocate (respondent  No.  2).  Ashok  in seeking  an  order  of attachment. The  Court  accepted  his submissions and passed the order of attachment.     (6)  Subsequently the defendant Anantaraju executed  the sale  deed dated 27th Nov., 1981 in favour of Gautam  Chand. The  object of the suit was achieved. The sale deed  was  in                                                   PG NO 368 fact  executed  during  the  subsistence  of  the  order  of attachment  concerning  the  same  property.  The  plaintiff Haradara  has not objected to it at any time.  Consistently, the  appellant  had reasons to believe  the  information  of settlement of dispute conveyed by the three parties together on 9.12.1981.

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   (7)  Gautam  Chand (RW 3) and the  complainant  Haradara acted  in  interest and scoured the attachment  of  property which  was  the subject matter of an agreement  to  sell  in favour of  Gautam Chand. The suit instituted in the name  of the  complainant Haradara was only for the benefit of Gautam Chand by reference to his interest in the property.     (8) The appellant conveyed information of the settlement of dispute by his note made on the docket. He drew a diagram of  the location of residence of the respondent No. 2  Ashok Advocate.  (Ex. R-1A at page 14 Additional  Documents).  The papers were delivered to respondent No. 2 Ashok Advocate  by Gautam Chand (PW 3).     (9)  After  satisfying himself, respondent No.  2  Ashok advocate  appeared  in Court on 10.12.81 and  filed  a  Memo prepared in his handwriting recording the fact of settlement of  dispute  and seeking withdrawal of the suit.  The  Court passed order dated 10.12.1981 dismissing the suit, O.S.  No. 1965 of 1981.     (10) Even though the plaintiff Haradara gained knowledge of  the disposal of suit, he did not meet the appellant  nor did he address him for over 1-1/2 years until May, 1983.  He did not also immediately apply for the restoration of  suit. An application for restoration was filed on the last date of limitation  on 11.1.1982. The application Misc. 16  of  1982 was later allowed to be dismissed for default on  30.7.1982. It  was later sought to be revived by application Misc.  No. 581  of 1982. Necessary orders were obtained  on  16.7.1988. Thus Misc. 16 of 1982 (Application for restoration of  suit) is pending in Civil Court.     On  a  survey  of the legal landscape  in  the  area  of disciplinary proceedings this scenario emerges:    (1)  In exercise of powers under section 35 contained  in Chapte  V  entitled "conduct of Advocates",  on  receipt  of                                                   PG NO 369  a complaint against an Advocate (or suo motu) if the  State Bar Council has ‘reason to believe’ that any Advocate on its role has been guilty of "professional or other  misconduct". Disciplinary proceeding may be initiated against him.     (2)  Neither section 35 nor any other provision  of  the Act  defines  the  expression’  legal  misconduct’  or   the expression ‘misconduct’ .     (3) The Disciplinary Committee of the State Bar  Council is  authorised to inflict punishment, including  removal  of his  name from the rolls of the Bar Council  and  suspending him  from  practise  for a period deemed fit  by  it,  after giving the Advocate concerned and the ’Advocate General’  of the State an opportunity of hearing.     (4)   While   under  section  42(1)  of  the   Act   the Disciplinary Committee has been conferred powers vested in a Civil   Court  in  respect  of  certain  matters   including summoning  and  enforcing  Attendance  of  any  person   and examining   him   on  oath,  the  Act  which   enjoins   the Disciplinary Committee to "afford an opportunity of hearing’ (Vide  Sec.  S)  to  the Advocate  does  not  prescribe  the procedure to be followed at the hearing.     (5)  The  procedure to be followed in an  Enquiry  under Section  35  is outlined in Part VII of the Bar  Council  of India  Rules (1) made under the authority of section  60  of the Act.     (6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee  to hear the concerned parties that is to say  the complainant and the concerned Advocate as also the  Attorney General or the Solicitor General or the Advocate General. It also  enjoins that if it is considered appropriate  to  take oral  evidence  the procedure of the trial of   civil  suits

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shall as far as possible be followed (2).     At  this juncture it is appropriate to  articulate  some basic   principles  which  must  inform   the   disciplinary proceedings  against  members  of the  legal  profession  in proceedings under Section 35 of the Advocates Act, read with the relevant Rules: 1.  Published  in Gazette of India on September 6,  1975  in Part III Section (pages 1671 to 1697).                                                   PG NO 370     (i)  essentially the proceedings are  quasi-criminal  in character  inasmuch  as a Member of the  profession  can  be visited  with penal consequences which affect his  right  to practice  the profession as also his honour;  under  Section 35(3)(d)  of the Act, the name of the Advocate found  guilty of professional or other misconduct can be removed from  the State Roll of Advocates. This extreme penalty is  equivalent of death penalty which is in vogue in criminal jurisprudence The  Advocate on whom the penalty of his name being  removed from  the roll of Advocate is imposed would be  deprived  of practising the profession of his choice, would be robbed  of his  means of livelihood, would be stripped of the name  and honour  earned by him in the post and is liable to become  a social  apartheid. A disciplinary proceeding by a  statutory body  of the Members of the profession which is  statutorily empowered  to impose a punishment including a punishment  of such immense proportions in quasi-criminal in character;     (ii)  as  a  logical  corollary  it  follows  that   the Disciplinary Committee empowered to conduct the enquiry  and to inflict the punishment on behalf of the body, in  forming an  opinion  must be guided by the doctrine  of  benefit  of doubt  and  is under an obligation to record  a  finding  of guilt  only upon being satisfied beyond   reasonable  doubt. It would be impermissible to reach a conclusion on the basis preponderence  of  evidence  or on  the  basis  of  surmise, conjucture  or suspicion. It will also be essential to  con- sider the dimension regarding mens rea.     This  proposition  is  hardly open to  doubt  or  debate particularly  having regard to the view taken by this  Court in  L.D. Jaisinghani v. Naraindas N. Punjubi, [1976]  3  SCR 354 wherein Ray, CJ., speaking for the Court has observed:     ‘In  any  case.  we  are  left  in  doubt  whether   the complainant’s  version. with which he had come forward  with considerable delay was really truthful. We think that, in  a case  of this nature, involving possible disbarring  of  the advocate  concerned, the evidence should be of  a  character which     2. Rule 8(1) "The Disciplinary Committee shall hear  the Attorney  General or the Solicitor General of India  or  the Advocate General, as the case may be or their Advocate,  and parties  or their Advocate, if they desire to be heard,  and determine  the matter on documents and affidavits unless  it is  of  the  opinion that it should be in  the  interest  of justice  to permit cross examination of the deponents or  to take  oral  evidence, in which case the  procedure  for  the trial of civil suits, shall as far as possible be followed."                                                    PG NO 371 should   leave   no  reasonable  doubt  about   guilt.   The Disciplinary  Committee  had not only  found  the  appellant guilty but had disbarred him permanently."                                    (Emphasis added).     (iii)  in  the  event of a charge  of  negligence  being levelled  against an Advocate, the question will have to  be decided  whether  negligence  simpliciter  would  constitute misconduct. It would also have to be considered whether  the standard expected from an Advocate would have to answer  the

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test of a reasonably equipped prudent practitioner  carrying reasonable  workload  A line will have to be  drawn  between tolerable negligence and culpable negligence in the sense of negligence  Which can be treated as professional  misconduct exposing  a  Member of the profession to punishment  in  the course  of disciplinary proceedings. In forming the  opinion on this question the standards of professional  conduct  and etiquette  spelt  out in Chapter 2 of Part VI of  the  Rules governing Advocates, framed under Section 60 (3) and Section 49(1)(g) of the Act, which form a part of the Bar Council of India  Rules may be consulted. As indicated in the  preamble of  the  Rules,  an Advocate shall,  at  all  times  compose 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 what may be lawful and moral  for one who is not a member of the bar may still be improper for an  Advocate and that his conduct is required to conform  to the rules relating to the duty to the Court, the duty to the client, to the opponent, and the duty to the colleagues, not only in letter but also in spirit.      It  is in the light of these principles  the  Committee would  be  required to approach the question as  regards  th guilt  or  otherwise  of  an  Advocate  in  the  context  of professional  misconduct levelled against him. In  doing  so apart  from  conforming to such procedure as may  have  been outlined in the Act or the Rules, the Disciplinary Authority would   be  expected  to  exercise  the  power   with   full consciousness  and awareness of the paramount  consideration regarding principles of natural justice and fair play.     The State Bar Council, after calling for the comments of the  appellant in the context of the complaint,  straightway proceeded to  record the evidence of the parties. No  charge was  framed  specifying  the  nature  and  content  of   the professional  misconduct attributed to the   appellant.  Nor                                                    PG NO 372 were   any  issues  framed  or  points   for   determination formulated. The Disciplinary Committee straightway proceeded to  record  evidence.  As the case could  not  be  concluded within  the  prescribed  time limit the matter  came  to  be transferred  to  the Bar Council of India  which  has  heard arguments and rendered the order under appeal.       The questions which have surfaced are:     (1)  Whether a specific charge should have  been  framed apprising  the appellant of the true nature and  content  of the professional misconduct ascribed to him?     (2)  Whether  the doctrine of benefit of doubt  and  the need for establishing the basic allegations were present  in the  mind  of the Disciplinary Authority  in  recording  the finding of guilt or in determining the nature and extent  of the punishment inflicted on him?     (3) Whether in the absence of the charge and finding  of dishonesty against him the appellant could be held guilty of professional  misconduct even on the assumption that he  had acted on the instructions of a person not authorised to  act on  behalf of his client if he was acting in good faith  and in  a bona fide manner. Would it amount to lack of  prudence or   nonculpable   negligence   or   would   it   constitute professional misconduct?     Now  so far as the procedure followed by the  State  Bar Council  at the Enquiry against the appellant, is  concerned it appears that in order to enable the concerned Advocate to defend himself properly, an appropriate specific charge  was required to be framed. No doubt the Act does not outline the procedure  and the Rules do not prescribe the framing  of  a charge.  But  then even in a departmental proceeding  in  an

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enquiry  against  an employee, a charge  is  always  framed. Surely  an  Advocate  whose honour and  right  to  earn  his livelihood are at stake can expect from his own professional brethern.  what an employee expects from his employer?  Even if  the  rules are silent, the paramount  and  overshadowing considerations  of  fairness would demand the framing  of  a charge. In a disciplinary proceeding initiated at the  level of this Court even though the Supreme Court Rules did not so prescribe, in re: Shri ‘M’ an Advocate of the Supreme  Court of  India   [1956]  SCR page 811(814) this  Court  framed  a charge after making these observations:                                                    PG NO 373     We  treated  the enquiry in Chambers  as  a  preliminary enquiry and heard arguments on both sides with reference  to the matter of that enquiry. We came to conclusion that  this was  not a case for discharge at that stage. We  accordingly reframed the charges framed by our learned brother, Bhagwati J., and added a fresh charge. No objection has been taken to this  course.  But  it is as well to mention  that,  in  our opinion, the terms of Order IV, rule 30 of the Supreme Court Rules  do  not  preclude  us  from  adopting  this   course, including  the  reframing  of, or  adding  to,  the  charges specified in the original summons, where the material at the preliminary  enquiry justifies the same. The  fresh  enquiry before  us  in  Court has proceeded with  reference  to  the following charges as reframed and added to by us."     It would be extremely difficult for an Advocate facing a disciplinary proceeding to effectively defend himself in the absence  of  a charge framed as a result of  application  of mind to the allegations and to the question as regards  what particular   elements  constituted  a  specified   head   of professional misconduct.     The  point arising in the context of the non-framing  of issues has also significance. As discussed earlier Rule 8(1) enjoins  that "the procedure for the trial of  Civil  suits, shall  as  far  as possible be followed.’’  Framing  of  the issues based on the pleadings as in a Civil suit would be of immense  utility. The controversial matters and  substantial questions would be identified and the attention focussed  on the  real  and  substantial factual  and  legal  matters  in contest.  The  parties would then become aware of  the  real nature and content of the matters in issue and would come to know  (l) on whom the burden rests (2) what evidence  should be  adduced to prove or disprove any matter (3) to what  end cross  examination  and  evidence  in  rebuttal  should   be directed. When such a procedure is not adopted there  exists inherent  danger  of miscarriage of justice  on  account  of virtual denial of a fair opportunity to meet the case of the other  side.  We wish the State Bar  Council  had  initially framed  a charge and later on framed issues arising  out  of the  pleadings for the sake of fairness and for the sake  of bringing into forefront the real controversy.     In  the light of the foregoing discussion the  questions arising  in  the present appeal may now to be  examined.  In substance  the charge against the appellant was that he  had withdrawn  a suit as settled without the  instructions  from the complainant. It was not the case of the complainant that                                                    PG NO 374 the appellant had any dishonest motive or that he had  acted in  the matter by reason of lack of probity or by reason  of having  been  won  over  by  the  other  side  for  monetary considerations  or otherwise. The version of  the  appellant was  that  the  suit  which  had  been  withdrawn  had  been instituted in a particular set of circumstances and that the complainant  had  been  introduced  to  the  appellant   for

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purposes of the institution of the suit by an old client  of his  viz.  RW  3 Gautam Chand.  The  appellant  was  already handling, a case on behalf of RW 3 Gautam Chand against RW 4 Anantharaju.  The decision to file a suit on behalf  of  the complainant  against  RW  4 Anantharaju  was  taken  in  the presence  of RW 3 Gautam Chand. It was at the  instance  and inspiration  of  RW 3 Gautam Chand that the  suit  had  been instituted by the complainant, but really he was the nominee of Gautam Chand and that the complainant himself had no real claim on his own. It transpires from the records that it was admitted by the complainant that he was not maintaining  any account  books in regard to the business and he was  not  an Income-tax  assessee.  In addition,the  complainant  (PW  1) Haradara  himself has admitted in his evidence that  it  was Gautam  Chand  who had introduce him to the  appellant,  and that he was in fact taken to the office of the appellant for filling  the  said suit, by Gautam Chand. It was  this  suit which  was  withdrawn  by the appellant. Of  course  it  was withdrawn without any written instruction from the defendant against  whom  he  had filed the suit for  recovery  of  Rs. 30,000 and odd through Gautam Chand and that he did not know the  defendant intimately or closely. He also admitted  that the  cheques  used to be passed in favour of the  party  and that  he was not entitled to the entire amount. He  used  to get only commission.     Since  even on the admission of the complainant  himself he was taken to the office of the appellant for  instituting the  suit,  by  RW  3 Gautam Chand, and  old  client  of  th appellant whose dispute with the defendant against whom  the complainant had filed the suit existed at the material  time and  was being handled by the appellant. The defence of  the appellant   that   he  had  withdrawn  the   suit   in   the circumstances mentioned by him required to be considered  in the  light of his admissions. The defence of  the  appellant being   that   the  suit  was  withdrawn  under   the   oral instructions  of  the complainant in the presence  of  RW  3 Gautam Chand and RW 4 Anantharaju and inasmuch as RWs 3  and 4 supported the version of the appellant on oath, the matter was  required  to be examined in this  background.  Assuming that  the evidence of the  appellant corroborated by  RWs  3 and  4 in regard to the presence of the complainant was  not considered  acceptable, the question would yet arise  as  to                                                    PG NO 375 whether  the withdrawal on the part of the appellant as  per the oral instructions of RW 3 Gautam Chand who had taken the complainant to the appellant for instituting the suit, would amount to professional misconduct. Whether the appellant had acted in a bona fide manner under the honest belief that  RW 3 Gautam Chand was giving the instructions on behalf of  the complainant required to be considered. If he had done so  in a   bona  fide  and  honest  belief  would   it   constitute professional  misconduct, particularly having regard to  the fact  that  nO  allegation  regarding  corrupt  motive   was attributed or established? Here it has to be mentioned  that the appellant had acted in an open manner in the sense  that he had in his own hand made endorsement for withdrawing  the suit as settled and sent the brief to his junior  colleague. If  the  appellant  had  any  oblique  motive  or  dishonest intention. he would not have made the endorsement in his own hand.     No doubt Rule 19 contained in Section 2 captioned  ‘Duty to  the clients’ provides that an Advocate shall not act  on the instructions of any person other than his client or  his authorised  agent.  If, therefore, the appellant  had  acted under  the  instructions  of RW 3  Gautam  Chand  bona  fide

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believing   that  he  was  the  authorised  agent  to   give instructions  on behalf of the client, would  it  constitute professional  misconduct?  Even if RW 3 was not in  fact  an authorised  agent of the complainant, but if  the  appellant bona  fide  believed him to be the authorised  agent  having regard  to  the circumstances in which the suit came  to  be instituted, would it constitute professional misconduct?  Or would it amount to only an imprudent and unwise act or  even a  negligent  act on the part of the appellant?  These  were questions which directly arose to which the Committee  never addressed  itself.  There is also nothing to show  that  the Disciplinary  Committee has recorded a finding on the  facts and the conclusion as regards the guilt in full awareness of the  doctrine of benefit of doubt and the need to  establish the facts and the guilt beyond reasonable doubt. As has been mentioned earlier, no charge has been formulated and framed, no issues have been framed. The attention of the parties was not  focussed on what were the real issues.   The  appellant was   not   specifically  told  as   to   what   constituted professional misconduct and what was the real content of the charge regarding the professional misconduct against him.     In the order under appeal the Disciplinary Committee has addressed itself to three questions viz.                                                    PG NO 376     (i) Whether the complainant was the person who entrusted the  brief  to  the  appellant and  whether  the  brief  was entrusted by the complainant to the appellant?     (ii)  Whether  report  of settlement  was  made  without instruction or knowledge of the complainant?     (iii)  Who was responsible for reporting settlement  and instructions of the complainant?     In  taking  the  view that the  appellant  had  done  so probably with a view to clear the cloud of title of RW 3  as reflected  in paragraph 22 quoted herein,  the  Disciplinary Committee  was  not  only  making  recourse  to  conjucture. surmise  and presumption on the basis of suspicion but  also attributing  to  the appellant a motive which was  not  even attributed by the complainant and of which the appellant was not given any notice to enable him to meet the charge:     "It is not possible to find out as to what made PW 2  to have  done  like  that. As already  pointed  out  the  house property which was under attachment had been purchased by RW 3 during the subsistence of the attachment. Probably with  a view  to clear the cloud of title of RW 3, PW 2  might  have done  it. This is only our suspicion. Whatever it might  be, it is clear that RW 2 had acted illegally in directing RW  l to report settlement."     In  our  opinion  the appellant has  not  been  afforded reasonable and fair opportunity of showing cause inasmuch as the  appellant was not apprised of the exact content of  the professional  misconduct attributed to him and was not  made aware  of the precise charge he was required to  rebut.  The conclusion  reached  by the Disciplinary  Committee  in  the impugned  order further shows that in recording the  finding of  facts on the three questions, the applicability  of  the doctrine  of benefit of doubt and need for establishing  the facts beyond reasonable doubt were not realised. Nor did the Disciplinary  Committee consider the question as to  whether the  facts  established that the appellant was  acting  with bona  fides  or with mala fides, whether the  appellant  was acting  with any oblique or dishonest motive, whether  there was  any mens rea, whether the facts constituted  negligence and  if so whether it constituted culpable  negligence.  Nor has  the Disciplinary Committee considered the  question  as regards  the  quantum  of punishment in  the  light  of  the

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aforesaid  considerations  and  the  exact  nature  of   the professional  misconduct established against the  appellant.                                                    PG NO 377 The  impugned  order passed by the  Disciplinary  Committee, therefore  cannot be sustained. Since we do not consider  it appropriate  to  examine  the matter on merits  on  our  own without   the  benefit  of  the  finding  recorded  by   the Disciplinary  Committee  of the apex judicial  body  of  the legal  profession, we consider it appropriate to  remit  the matter  back to the Disciplinary Committee. As  observed  by this  Court in O.N. Mohindroo v. The District  Judge,  Delhi and  Anr., Supreme Court Bar Association, [1971] 3 SCC 5  in paragraph  23 quoted hereinbelow, we have no doubt that  the Disciplinary Committee will approach the matter with an open mind:     "From  this  it follows that questions  of  professional conduct are as open as charges of cowardice against Generals for  reconsideration of the conviction of persons  convicted of crimes. Otherwise how could the Hebron brothers get their conviction  set aside after Charles Peace confessed  to  the crime for which they were charged and held guilty?’’     We must explain why we consider it appropriate to  remit the matter back to the Bar Council of India. This matter  is one pertaining to the ethics of the profession which the law has  entrusted  to  the Bar Council of India.  It  is  their opinion  of a case which must receive due weight because  in the words of Hidayatullah, CJ, in Mohindroo’s case:     "This  matter  is one of the ethics  of  the  profession which the law has entrusted to the Bar Council of India.  It is their opinion of a case which must receive due weight.’’     It appears to us that the Bar Council of India must have an  opportunity  to  examine the very  vcxed  and  sensitive question which has arisen in the present matter with  utmost care   and  consideration.  the  question  being  of   great importance  for the entire profession. We are not  aware  of any  other matter where the apex body of the profession  was required  to  consider  whether  the bona  fide  act  of  an Advocate  who in good faith acted under the instructions  of someone closely connected with his client and entertained  a bona  fide  belief that the instructions  were  being  given under  the  authority  of his client,  would  be  guilty  of misconduct.  It  will  be for the Bar Council  of  India  to consider  whether it would constitute an imprudent  act,  an unwise  act.  a  negligent act  or  whether  it  constituted negligence  and if so a culpable negligence, or  whether  it constituted  a  professional  misconduct  deserving   severe punishment, even when it was not established or atleast not                                                    PG NO 378 established  beyond  reasonable  doubt  that  the  concerned Advocate was acting with any oblique or dishonest motive  or with mala fides. This question will have to be determined in the light of the evidence and the surrounding  circumstances taking into account the doctrine of benefit of doubt and the need  to record a finding only upon being  satisfied  beyond reasonable  doubt.  In the facts and  circumstances  of  the present  case, it will also be necessary to  re-examine  the version  of  the complainant in the light of  the  foregoing discussion  keeping  in  mind  the  admission  made  by  the complainant  that  he  was  not  maintaining  any  books  of accounts  and he was not an Income-tax assessee and  yet  he was  the  real plaintiff in the suit for Rs.30,000  and  odd instituted by him, and in the light of the admission that it was  RW  3  Gautam  Chand who  had  introduced  him  to  the appellant and that he was in fact taken to the office of the appellant,  for filing the suit, by RW 3  Gautam-Chand.  The

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aforesaid  question would arise even if the  conclusion  was reached that the complainant himself was not present and had not  given instructions and that the appellant had acted  on the  instructions of RW 3 Gautam Chand who had  brought  the complainant  to the appellant’s office for  instituting  the suit  and  who was a close associate   of  the  complainant. Since all these aspects have not been examined at the  level of  the Bar Council, and since the matter raises a  question of  principle  of considerable importance  relating  to  the ethics of the profession which the law has entrusted to  the Bar Council of India, it would not be proper for this  Court to  render an opinion on this matter without the benefit  of the  opinion of the Bar Council of India which  will  accord close  consideration  to  this matter in the  light  of  the perspective  unfolded  in this judgment both on law  and  on facts.  We are reminded of the high degree of fairness  with which  the  Bar Council of India had  acted  in  Mohindroo’s case. The Advocate concerned was suspended from practice for four  years.  The  Bar Council  had  dismissed  the  appeal. Supreme  Court  had  dismissed the  Special  Leave  Petition summarily.  And  yet the whole matter was  reviewed  at  the instance of the Bar Council and this Court was persuaded  to grant the review. A passage extracted from Mohindroo’s  case deserves to be quoted in this connection:     "37.  We find some unusual circumstances facing us.  The entire Bar of India are of the opinion that the case was not as satisfactorily proved as one should be and we are also of the same opinion. All processes of the Court are intended to secure justice and one such process is the power of  review. No  doubt  frivolous  reviews  are  to  be  discouraged  and technical  rules have been devised to prevent  persons  from                                                    PG NO 379 reopening  decided cases. But as the disciplinary  committee themselves   observed   there  should  not   be   too   much technicality  where professional honour is involved  and  if there is a manifest wrong done, it is never too late to undo the  wrong.  This Court possesses under the  Constitution  a special power of review and further may pass any order to do full  and  effective justice. This Court is  moved  to  take action and the Bar Council of India and the Bar  Association of  the  Supreme  Court are  unanimous  that  the  appellant deserves to have the order disbarring him from practice  set aside.     We  have therefore no doubt that upon the  matter  being remitted  to the Bar Council of India it will be dealt  with appropriately in the light of the aforesaid perspective.  We accordingly  allow this appeal, set aside the order  of  the Bar  Council  in so far as the appellant  is  concerned  and remit  the matter to the Bar Council of India. We.  however, wish  to  make  it clear that it will not  be  open  to  the complainant  to  amend the complaint or to add  any  further allegation.  We  also  clarify  that  the  evidence  already recorded  will  continue to form part of the record  and  it will be open to the Bar Council of India to hear the  matter afresh  on  the  same evidence. It  is  understood  that  an application  for  restoration  of the suit  which  has  been dismissed  for default in the City Civil Court at  Bangalore has been made by the complainant and is still pending before the  Court. It will be open to the Bar Council of  lndia  to consider  whether  the  hearing  of the  matter  has  to  be deferred  till the application for restoration  is  disposed of.   The  Bar  Council  of  India  may   give   appropriate consideration to all these questions.     We further direct that in case the judgment rendered  by this  Court or any part thereof is reported in Law  Journals

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or published elsewhere, the name of the appellant shall  not be  mentioned  because  the matter is  still  subjudice  and fairness demands that the name should not be specified.  The matter can be referred to as an Advocate v. The Bar  Council or in re. an Advocate without naming the appellant.     The   appeal  is  disposed  of  accordingly.  No   order regarding costs. Y. Lal                            Appeal disposed of.