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PETITIONER: IN THE MATTER OF P. AN ADVOCATE

       Vs.

RESPONDENT:

DATE OF JUDGMENT: 23/01/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1963 AIR 1313            1964 SCR  (1) 697  CITATOR INFO :  RF         1976 SC 242  (23)  R          1984 SC 110  (6,7)  RF         1992 SC1398  (4)

ACT: Advocate-Professional  Misconduct--Failure to file  Bill  of Costs in time-Gross negligence, when amounts to professional misconduct-Senior  Advocate  receiving  fees  directly  from clientPropriety of-Supreme Court Rules, O. IV-A.

HEADNOTE: Mr. P, an Advocate-on-record of the Supreme Court, acted for Respondent  No.  2  (b) in the appeal and Mr.  J,  a  Senior Advocate,  was  briefed  to lead him at  the  hearing.   The client had paid Rs. 500/- to Mr. I?. and Mr. j was paid  Rs. 1,000/direct  by the client.  The appeal was dismissed  with costs in favour of Respondent No. 2 (b).  Though the  client paid him the expenses asked for Mr. P did not lodge the Bill of  Costs  within  the time allowed but filed  in  about  10 months beyond time. As the Bill of Costs was not accompanied by an application for condonation of delay, it was returned. Mr.  P took no steps thereafter but, a year later  he  asked for  and received another sum of Rs.. 200/-from his  client. The client repeatedly wrote to the Advocate enquiring  about the Bill of Costs but received no reply.  The client applied for discharging the Advocate and for condonation of delay in filing  the  Bill  of’ Costs, both  of  which  prayers  were granted.  The Chief justice constituted a tribunal under  0. IV-A,  r.  I  8, Supreme Court Rules  to  enquire  into  the conduct of Mr. P. The Tribunal held that the Advocate  acted with  gross-negligence  and  that his  conduct  amounted  to professional.  or other misconduct within the meaning of  0. IV-A.  Thereafter the matter was placed before the Court for final disposal. Held,   that  the  Advocate  was  guilty   of   professional misconduct and his name should be removed from the rolls for five years. The Advocate was guilty of causing gross delay in filing the Bill of Costs for which there was no acceptable explanation.

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Though  mere negligence or error of judgment did not  amount to  professional misconduct, different considerations  arose where the negligence of the Advocate was gross.   Sometimes, Courts  examine whether the gross negligence involves  moral turpitude  or  delinquency.  Conduct which  is  contrary  to honesty, or opposed 698 to good morals or is unethical involves moral turpitude.  An unduly  narrow  view of the concept of  moral  turpitude  or delinquency is not to be taken and it has to be seen whether by his conduct the Advocate has rendered himself unworthy to be  a  member of the legal profession.  The  Tribunal  which consisted  of three members of the legal profession,  was  a good  judge  of  what  was  professional  misconduct  as  an Advocate., in  re A Vakil, (1925) I.L.R. 49 Mad. 523, In the matter  of an  Advocate  of  Aqra, I.L.R. 1940 All.  386,  Allinson  v. General  Council  of  Medical  Education  and  Registration, (1894)  1  Q.B.  750, In re A Solicitor  Ex  parte  the  Law Society.  (1912) 1 K.B. 302, In the matter of  an  Advocate, (1936)   I.L.R.  63  Cal.867  and  In  the  matter   of   an Advocate,(1933) I.L.R. 12 Ran 110, referred to. The  acceptance of fee by a Senior Advocate direct from  the client  is  not consistent with professional  etiquette  and convention about the conduct of Senior Counsel.

JUDGMENT: DISCIPLINARY JURISDICTION Sarju Prasad and A. D. Mathur, for the Advocate. C.   K.  Daphtary,  Solicitor General of India,  and  R.  N. Sachthey, for the Attorney-General for India. 1963.  January 23.  The judgment of the Court was  delivered by GAJENDRAGADKAR,  J.-Mr. P., who is an advocate-on-record  of this Court and who wilt hereafter be called the  ’Advocate’, acted  for the Board of Trustees of the Dakhina Parswa  Nath of  Puri through its Executive Officer respondent No. 2  (b) in  Civil Appeal No. 232/1954.  As such Advocate he  entered appearance  on November 9, 1957.  The said appeal was  heard on  May, 2 and 6, 1958, and by the judgement  pronounced  by this Court on May, 20, 1958, it was dismissed with costs  in favour  of respondent No. 2 (b).  The Advocate  had  briefed Mr.  J. as a senior Advocate to lead him at the  hearing  of the appeal.  It appears that the client had paid 699 the  Advocate  Rs. 500/- on the eve of the  hearing  of  the appeal  and the senior Advocate was paid Rs. 1,000/-  direct by  the  client.  The Bill of Costs and vouchers had  to  be filed  by  the Advocate on behalf of his client  within  six weeks  from  the date of judgment under O. XL r. 12  of  the Supreme  Court Rules (hereinafter called the ’Rules’).   The said period expired during the summer vacation of the Court. After  the summer vacation, the Court reopened on August  4, 1958.   Meanwhile, on May, 20 1958, after the  judgment  was delivered  by this Court, the Advocate wrote to  his  client informing him about the result of the appeal and  intimating to him that the bill of costs had to be filed.  On June, 28, 1958,  he again wrote to his client and called for Rs.  60/- to  meet the necessary expenses in the matter of  presenting the  bill of costs.  This amount was paid to him at Puri  on july  26,  1988, and the Advocate passed a receipt  in  that behalf,  He, however, took no further action in  the  matter until  about  January  9,  1959, when  it  appears  that  he

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inspected the Court records in order to be able to prepare a draft  bill.  A bill was accordingly prepared by him and  it was presented in Court on May 19, 1959.  Since the bill  was obviously filed beyond the period prescribed by 0. XL. r. 12 the  Office returned the bill to the Advocate.  In  ordinary course,  the  Advocate  should  have  filed  an  application requesting that the delay made in filing the bill should  be condoned,  but he seems to have taken no further  action  in that behalf.  Even so, on May, 18, 1960, the Advocate  asked for and received Rs. 200/- from his client.  It appears that Mr. Banamdar was the ’Executive Officer of respondent No.  2 (b)  when  the Advocate was engaged by him, but  later,  Mr. Misra  succeeded to the office of the Executive Officer  and the  amount  of Rs. 200/- was paid to the  Advocate  by  Mr. Misra; a receipt for this payment had also been passed.   It is  difficult to understand why the Advocate asked for  this amount.  During the period this client wrote to 700 the Advocate enquiring about the bill of costs but  received no  reply.   When Mr. Misra realised that the  Advocate  was taking no action in the matter of presenting the bill of the costs  and obtaining orders thereon, he gave notice  to  the Advocate  on  January  9, 1961,  discharging  him  from  his engagement.  on  January 12, 1961, he also applied  to  this Court  to cancel the Advocate’s Vakalat and to  condone  the delay  made in the filing of the bill of costs.  On March  1 12, 1961, the Advocate agreed that his client can engage Mr. Verma.   The applications made by the client for  cancelling the  Advocate’s Vakalat and for condoning the delay made  in the  filing of the bill of costs came up before the  learned judge in Chambers.  They had, however, to -be adjourned from time  to  time  in order to enable the  Advocate  to  appear before the learned Chamber judge.  Ultimately, on January 9, 1962,  the  learned  judge condoned the delay  made  in  the presentation  of the bill of costs without prejudice to  the right of the judgment-debtor to plead that the execution  in respect of the bill of costs is barred by limitation.He also ordered  that the papers should be submitted to the  Hon’ble the Chief justice for taking action against the Advocate for the  gross  negligence shown by him in the  conduct  of  the proceedings in this case’ The advocate was also directed  to hand over all the papers of the case to Mr. Verma. After  the papers were thus placed before the learned  Chief justice,  he  constituted  a Tribunal  consisting  of  three members  of the Bar under 0. IV-A r. 18 to enquire into  the conduct  of  the Advocate.  The Tribunal then  proceeded  to hold  an enquiry and submitted its report.  The issue  which the  Tribunal  tried in these proceedings  was  whether  the Advocate  acted with gross negligence in the matter  of  the taxation  of  the  costs  of his client  in  the  appeal  in question, and if so, whether such conduct amounts  701 to  professional or other misconduct within the  meaning  of that  expression in 0. IV of the Rules.  The report  of  the Tribunal  shows  that it has found against the  Advocate  on both  parts of the issue.  In its opinion, the  conduct  of- the  Advocate amounts to professional misconduct as well  as other misconduct within the meaning of the said Order. On receipt of this Report, the proceedings have been -placed before  us  for final disposal under 0. IV-A r.  21  of  the Rules  and  the questions which fall for  our  decision  are whether  the Tribunal was right in holding that the  conduct of the Advocate amounts to professional misconduct and other misconduct  and if yes, what is the penalty which should  be imposed on the Advocate?

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The  relevant  facts  which the Tribunal  had  to  weigh  in dealing  with  the issue referred to it lie  within  a  very narrow  compass.  It is obvious that in filing the  bill  of costs  on  May 19, 1959, the Advocate was  guilty  of  gross delay.   He knew that O. XL r. 12 required that the bill  of costs and vouchers had to be filed within six weeks from the date  of judgment and there is no doubt that for filing  the bill of costs and vouchers it was unnecessary to obtain  any instructions  from  the client or secure any  material  from him.   The bill of costs incurred by the respondent  in  the proceedings before this Court which had to be taxed were  in this  case  all  costs incurred in this  Court  and  if  the Advocate  had kept proper accounts, he would have been  able to  file  the bill of costs without any delay.  It  is  true that the senior counsel briefed by him in this case was paid his   fees  of  Rs.  1000/-  by  the  client  direct   which incidentally. is not consistent with professional  etiquette and convention about the conduct of a senior counsel.  It is to be hoped that this departure from professional  etiquette conventionally  prescribed  for the senior Advocates  is  an exception. for if Senior Advocates were to deal 702 with the clients direct, it would destroy the very basis  of the  system  of  Advocates on-Record and would  make  it  so difficult  for this Court to assist the growth of a  strong, healthy and efficient junior Bar consisting of Advocates-on- record and junior Advocates who prefer only to plead and not to  act and plead.  It is, however, clear that the  Advocate could  have  obtained  a receipt  from  the  senior  counsel without  any  delay and it is not suggested that  the  delay made  by him in filing the bill of costs had anything to  do with  his inability to obtain such a receipt.  In fact,  the senior counsel had already sent a receipt to his client  and there  is  no doubt whatever that if only the  Advocate  had approached  him  for  another receipt in  that  behalf,  the senior  counsel  would  have immediately given  him  such  a receipt.  Therefore, in dealing with the question of  delay, we  cannot ignore the fact that the delay has been  made  in filing  the bill of costs and vouchers which was entirely  a matter  within  the Advocate’s knowledge.  It is  of  utmost importance that Advocates-on-record ought to discharge their duties  by their clients with diligence and there should  be no  occasion  for any delay in the filing of  the  bills  of costs and vouchers under O. XL r. 12. It  is significant that the client repeatedly wrote  to  the Advocate and enquired about the bill of costs.  Four of such letters  written  by the client to the  Advocate  have  been produced  in  the  proceedings  before  the  Tribunal.   The Advocate explained that he sent replies to these letters  by post-cards  or sometimes orally explained to the client  the position when he happened to meet him.  The Tribunal was not impressed with this explanation and thought that the conduct of  the Advocate in not sending any replies to  the  queries made by his client rather shows that the advocate knew  that he  was  at  fault and he had really no answer  to  give  in respect  of the said queries.  It is also clear  that  after the appeal was ’decided, the Advocate was paid by his client Rs. 60/- obviously  703 with  a view to enable him to file the bill of  costs.   The Tribunal  has found that this amount was quite  ample  under the  rules and so, it is not possible to explain  the  delay made  by  the Advocate in filing the bill of  costs  on  the ground that he was not put in charge of sufficient funds  by his client to meet the expenses in that behalf.

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A  faint attempt was no doubt made by the Advocate  to  show that he could not file the bill of costs in time because  he did  not receive the assistance of the High Court lawyer  as to  the printing charges, etc.  Indeed, it does appear  that the  Advocate  wrote a letter on May 20, 1958,  calling  for some information in respect of the printing charges incurred in  the preparation of the paper books in this  appeal.   As the   Tribunal   has  observed,  this   plea   is   entirely meaningless, because the taxation of costs of the appeal  in this  Court has nothing to do with the expenses incurred  by the parties for preparing the record in the High Court;  and as  to vouchers, the only voucher which the Advocate had  to file  was the voucher from the senior counsel in respect  of the  fees of Rs. 1,000/- paid to him.  Therefore,  there  is little  doubt that the Advocate was guilty of causing  gross delay  in filing the bill of costs and vouchers as  required by  the  relevant Rule.  The fact that the  learned  Chamber judge  was pleased to condone the delay made  in  presenting the  bill  of  costs when he was moved by  Mr.  Verma  by  a separate application made in that behalf, does not  mitigate the  default on the part of the Advocate in not  filing  the said  bill  of costs in time.  Besides, as we  have  already seen,  the delay has been condoned without prejudice to  the judgment-debtor’s  right  to  plead that  the  execution  is barred  by  the law of limitation.  In case such a  plea  is raised and allowed, the respondent is likely to lose a large amount  of  more than Rs. 2000/-.  Even if the plea  is  not raised,  or,  if raised, is not allowed and  the  respondent secures his costs from the 704 appellant,  that would be because the learned Chamber  judge took  a  sympathetic view and did not wish to  penalise  the party  for default of his Advocate.  It is in the  light  of these  findings that we have to decide whether the  Tribunal was  justified  in holding that the Advocate  is  guilty  of professional misconduct as well as other misconduct. It is true that mere negligence or error of judgment on  the part  of  the  Advocate would  not  amount  to  professional misconduct.    Error  of  judgment  cannot   be   completely eliminated in all human affairs and mere negligence may  not necessarily show that the Advocate who was guilty of it  can be  charged with misconduct, vide In re A Vakil (1), and  in the  matter  of  an Advocate of Agra  (2)  .  But  different considerations arise where the negligence of the Advocate is gross.   It  may be that before condemning an  Advocate  for misconduct,  courts are inclined to examine the question  as to  whether such gross negligence ’involves moral  turpitude or delinquency.  In dealing with this aspect of the  matter, however,  it  is of utmost importance to remember  that  the expression  "moral  turpitude  or  delinquency"  is  not  to receive  a  narrow construction.   Wherever  conduct  proved against  an Advocate is contrary to honesty, or  opposed  to good morals, or is unethical, it may be safely held that  it involves  moral turpitude.  A wilfull and callous  disregard for  the interests of the client may, in a proper  case,  be characterised  as  conduct unbefitting  ’an’  Advocate.   In dealing  with matters of professional propriety,  we  cannot ignore the fact that the profession of law is an  honourable profession  and it occupies a p1ace of pride in the  liberal professions  of  the country.  Any. conduct  which  makes  a person unworthy to belong to the noble fraternity of lawyers or  makes  an  Advocate  unfit  to  be  entrusted  with  the responsible  task  of  looking after the  interests  of  the litigant,  must  be  regarded  as  conduct  involving  moral turpitude.  The

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(1) (1925) I.L.R. 49 Mad. 523. (2) I.L.R. 1940 All. 386.  705 Advocates-on-record  like  the  other  members  of  the  Bar Advocates  are Officers of the Court and the purity  of  the administration  of justice depends as much on the  integrity of the judges as on the honesty of the Bar.  That is why  in dealing  with  the question as to whether  an  Advocate  has rendered  himself unfit to belong to the brotherhood at  the Bar, the expression "moral turpitude or delinquency" is  not to be construed in an unduly narrow and restricted sense. Besides, -it would be noticed that the relevant rules of IV- A  refer  not only to professional misconduct but  to  other misconduct as well.  An Advocate invites disciplinary orders not  only  if he is guilty of professional  misconduct,  but also  if he is guilty of other misconduct ; and  this  other misconduct  which  may not be directly  concerned  with  his professional activity as I such, may nevertheless be of such a  dishonourable  or  infamous character as  to  invite  the punishment  due  to  professional  misconduct  itself.    An illustration in point would be the conviction of an Advocate for a criminal offence involving moral turpitude, though  it may  not  be connected with his professional work  as  such. Therefore,  in dealing with the case of the Advocate  before us,  it would not be right to take an unduly narrow view  of the  concept  of  moral  delinquency  or  turpitude  but  to concentrate on the broad issue as to whether by his  conduct proved  in  the  present case he has  not  rendered  himself unworthy to be a member of the legal profession. As  early  as  1894  Lopes  L.  J.  attempted  to  give  the definition  of  misconduct of a medical man in  Allinson  v. General  Council of Medical Education and Registration  (1). In that case Lopes L. J. said :               "The  Master  of  the  Rolls  has  adopted   a               definition which, with his assistance and that               of my brother Davey, I prepared.  I will read               (1)   [1894] 1 Q. B. 750.               706               it again. ,If it is shown that a medical  man,               in  the  pursuit of his profession,  has  done               something  with  regard to it which  would  be               reasonably   regarded   as   disgraceful    or               dishonourable by his professional brethern  of               good repute and competency, then it is open to               the General Medical Council to say that he has               been   guilty  of  ’infamous  conduct   in   a               professional respect’." This  definition was held applicable while dealing with  the case  of  a  solicitor In re A Solicitor Ex  parte  the  Law Society (1).  Mr. Justice Darling quoted this definition and added "that the Law Society are very good judges of what  is professional misconduct as a solicitor, just as the  General Medical  Council are very good judges of what is  misconduct as  a  medical  man."  With  respect,  we  think  the   same observation can be made with equal force about the  Tribunal which has dealt with this matter and made its report in  the present case. In the matter of An Advocate (2), Mukerji, A. C.referred  to the  observations  made by Page J. J. In the  matter  of  An Advocate  (3)  which showed that the learned  Chief  Justice thought that "’in considering whether an advocate should  be struck  off  the  roll of Advocates, the  ’test.  should  be whether  the proved misconduct of the advocate is such  that he  must be regarded as unworthy to remain a -member of  the honourable  profession  to which he has  been  admitted  and

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unfit  to be entrusted with the responsible duties  that  an advocate is called upon to perform "; and Mukerji, A. C..J., added  that ,,with all respect.  I would prefer to take  the two  conditions  laid down as  aforesaid  disjunctively  and apply the test in that way so that on the fulfilment of  any one  of  the  conditions  the  test  would  be  regarded  as satisfied."  In other words, according to Mukerji A. C.  T., misconduct  which  would render the Advocate  liable  to  be removed from the rolls can be (1) [1912] 1 K. B. 302.    (2) (1936) I.L.R. 63 Cal. 867. (3) (1933) I.L.R. 12 Pan. 110, 113.  707 either professional misconduct or other misconduct, with the result  that  in  either case, the  advocate  ceases  to  be entitled to belong to the honourable profession of law.  The learned judge also observed that this disjunctive test would prove  a  sound working rule in the majority  of  cases  and would  be applicable to all branches of the profession.   It would  be noticed that the words used in the relevant  rules of O. IV-A are professional or other misconduct and that  is on the same lines as the relevant provision in s. 10 (i)  of the Indian Bar Council Act, 1926 (38 of 1926). Reverting  then to the facts found by the Tribunal  in  this case,  it  is  clear that the advocate  was  paid  Rs.  60/- expressly  for  the purpose of filing the bill of  costs  in time ; that the delay made by him in presenting the bill  of costs is so unreasonable that the negligence of which he  is guilty  must  be characterised as  gross.   The  explanation given  by  the Advocate in justification of  this  delay  is clearly  fantastic and untrue.  The, loss which  would  have resulted to the client is of the order of Rs. 2000/- and  it consists of an item of costs awarded to him by this Court in dismissing  the  appeal  filed  against  him.   During   the relevant  period, his client was repeatedly enquiring as  to what  had  happened  about  the  bill  of  costs,  and   the explanation  given by the Advocate in that behalf  has  been rejected by the Tribunal and it must, therefore, be taken to be  proved that despite the reminders, the advocate took  no steps  to  file  the bill of costs in  time.   Even  so  the Advocate  asked for and received Rs. 200/- from  Mr.  Misra, the  successor of Mr. Banamdar, on May 18, 1960, and as  the Tribunal  has  observed,  this demand by  the  Advocate  was wholly   unjustified.    Having   regard   to   all    these circumstances,  we  do  not think it would  be  possible  to accept Mr. Sarjoo Prasad’s contention that the Tribunal  was not justified in making a finding against the advocate  that he was guilty of professional misconduct. 708 The  next question which we have to consider is: what  would be the appropriate order to make in this case ? Fortunately, cases  of professional misconduct are rare in this  Court  ; but when they are brought to the notice of this Court and it is proved that the allegations made against an Advocate  are true,  it would be unwise and inexpedient for this Court  to take  a  lenient  view of the lapse of  the  Advocate.   The members of the Bar owe it to themselves and to the Court  to live  up to the best traditions of the Bar, and any  serious lapse an the part of any member of the Bar must be  severely dealt with.  Healthy traditions at the Bar help not only  to make  the Bar strong and respected, but render valuable  and effective  assistance to the Courts to deserve  and  sustain the  absolute confidence and faith of the litigating  public in  the  fairness of the administration of justice,  for  we must always remember that on the ultimate analysis, the real strength  of  the  administration of  justice  lies  in  the

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confidence  of  the  public at  large.   We  are,  therefore reluctant to accede to the plea made before us by Mr. Sarjoo Prasad  that  we  should  reprimand  the  Advocate  for  his misconduct  and pass no further orders against him.   Having carefully considered all the relevant circumstances in  this case,  we  are  satisfied  that  in  the  interests  of  the profession itself, it -is necessary to direct that the  name of  the Advocate should be removed from the rolls  for  five years.   We  also direct that the Advocate  should  pay  the respondent’s costs of the enquiry before the Tribunal and of the hearing before us.  Before we part with this matter,  we ought to add that it has been conceded before us both by Mr. Sarjoo Prasad and by the learned Solicitor-General that Part V of the Advocates Act, 1961 (25 of 1961) has not still been brought  into  force and so, s. 50 (4) of the  said  Act  is still  not  applicable,  and that  means  that  the  present proceedings have to be dealt with by the Court in accordance with the existing law.  709