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CASE NO.: Appeal (civil)  5476 of 1999

PETITIONER: Noratanmal Chouraria

RESPONDENT: M.R. Murli & Anr.        

DATE OF JUDGMENT: 16/04/2004

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

JUDGMENT: J U D G E M E N T

S.B. SINHA, J :

INTRODUCTION:

  An order of the Bar Council of India dated 27.2.1999  passed in BCI TR No.73/1997 refusing to enquire into a  complaint of purported misconduct on the part of the  respondent herein is in question in this appeal  preferred by the Appellant herein under Section 38 of  the Advocates Act, 1961.

BACKGROUND FACTS: The relationship between the appellant and the  respondents herein is that of landlords and tenant.  A  rent control proceeding was initiated by the  respondents against the appellant.  While the rent  control proceeding was pending in the small causes  court, they allegedly misconducted themselves by reason  of following acts of omissions and commissions:-

(1)     On 8.10.1993 when the appellant came out of the  court hall of the said court after attending  the appeal pending there, the first respondent  allegedly came from behind and hit him on his  back and ran away.

(2)     On 26.10.1993 while the appellant was coming  out of the court hall, the first respondent  accompanied with some rowdy elements threatened  to kill him.  The matter was allegedly reported  to the police on the same day.  

(3)     On 1.3.1995 when the learned Xth Judge left for  his chamber during the lunch break and while  the appellant was leaving the  court hall along  with his advocate Shri S.Vijayranjan, the first  respondent kicked him on the knee of his left   leg in the court room with an intention to  cause injury and further asked him not to  appear in the court for evidence.

The disciplinary committee of the Bar Council of  Tamil Nadu upon receipt of the said complaint of the  appellant herein initiated a proceeding. The matter  ultimately appeared to have been transferred to the  disciplinary committee of the Bar Council of India.

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Impugned Order of the Bar Council:

The disciplinary committee of the Bar Council of  India noticed that in relation to the aforementioned  acts of omission and commission on the part of the  respondents, no criminal proceeding was initiated by  filing a complaint petition by the appellant.  No  charge-sheet had also been filed by the police in  relation to the occurrence dated 26.10.1993 wherefor an  FIR had been lodged.  It was further accepted that the  first respondent had not been appearing in the  aforementioned rent control proceedings as an advocate  but as a party in person.  Having regard to the fact  that till the date of passing of the impugned order  neither the appellant herein produced any document to  substantiate any follow up action on his part in  respect of complaint filed by him before the police  authority, nor did he file any private complaint, the  committee was prime facie of the view that the factum  of occurrence of the said incidents are not reliable.   Further, it was noticed that the first respondent  appeared in the said litigation not as advocate but as  litigant in person.   

Submissions:

Mr.S.B.Upadhyay, learned counsel appearing on  behalf of the appellant, inter alia, would submit that  under Section 35 of the Advocates Act an advocate on  the roll of the Bar Council can be proceeded against  for committing any misconduct which may not be confined  to professional misconduct; the Bar Council grossly  erred in passing the impugned order.  Strong reliance  in support of the said contention has been placed on a  decision of this court in D An Advocate of the Supreme  Court reported in [1955 (2) SCR 1006].  The learned  counsel would contend that having regard to the fact  that the first respondent assaulted the complainant,  asked him not to proceed with the case and on the third  occasion kicked him as a result whereof he fell down  are clear pointers to the fact that such acts are not  expected of a member of a legal profession and, thus,  the same must be held to be acts of misconduct.   Learned counsel in support of said contention relied  upon Hikmat Ali Khan V. Ishwar Prasad Arya and Ors.[  1997 (3) SCC 131] and N.G.Dastane V. Shrikant S.Shivde  and Anr. [2001 (6) SCC 135].  Our attention has also  been drawn to the preamble of the Bar Council of India  Rules.

       Mr.T.Raja learned counsel appearing on behalf of  the respondents would, on the other hand, submit that  the appellant herein had been harassing the respondent  by initiating false cases and in fact the complaint in  question against the respondents is the eighth one and  no relief had been granted in the other seven  complaints.  Mr.Raja would urge that it is improbable  that if an act of the nature complained of had taken  place in a court room, the same would not be brought to  the notice of the presiding officer.  Neither any  private complaint having been filed nor any proceeding  in the criminal courts having been initiated by the  appellant herein and further no evidence in support  thereof having been produced before the Bar Council,

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the learned counsel would contend that the impugned  orders should not be interfered with by this court.   

Misconduct:

Misconduct has not been defined in the Advocates  Act, 1961.  Misconduct, inter alia, envisages breach of  discipline, although it would not be possible to lay  down exhaustively as to what would constitute conduct  and indiscipline, which, however, is wide enough to  include wrongful omission or commission whether done or  omitted to be done intentionally or unintentionally. It  means, "improper behaviour intentional wrong doing or  deliberate violation of a rule of standard or  behaviour":

Misconduct is said to be a transgression of some  established and definite rule of action, where no   discretion is left except what necessity may demand; it  is a violation of definite law.

        In Delhi Cloth & General Mills Co. Ltd. vs. Its  Workmen reported in (1969) 2 LLJ 755, Shah, J. stated  that misconduct spreads over a wide and hazy spectrum  of industrial activity; the most seriously subversive  conducts rendering an employee wholly unfit for  employment to mere technical default covered thereby.

       This Court in State of Punjab and Others vs. Ram  Singh Ex. Constable, reported in 1992 (4) SCC 54,  noticed:-

"5. Misconduct has been defined in Black’s  Law Dictionary, sixth Edition at Page 999  thus:-

       "A Transgression of some established  and definite rule of action, a forbidden act,  a dereliction  from duty, unlawful behaviour,  wilful in character, improper or wrong  behaviour, it synonyms are misdemeanor,  misdeed, misbehaviour, delinquency,  impropriety, mismanagement, offense, but not  negligence or carelessness".

       Misconduct in offence has been defined  as :-

"Any unlawful behaviour by a public officer  in relation to the duties of his office,  wilful in character.  Term embraces acts  which the office holder had no right to  perform, acts performed improperly and  failure to act in the face of an affirmative  duty to act".

P.Ramanath Aiyar’s Law Lexicon, Reprint Edition 1987  at Page 821 defines ’misconduct thus:-

"The term misconduct implies a wrongful  intention, and not a mere error of judgment,  Misconduct is not necessarily the same thing  as conduct involving moral turpitude.   The

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word misconduct is a relative term, and has  to be construed with reference to the  subject-matter and the context wherein the  term occurs, having regard to the scope of  the Act or statute which is  being construed.   Misconduct literally means wrong conduct or  improper conduct.  In usual parlance,  misconduct means a transgression of some  established and definite rule of action,  where no discretion is left, except what  necessity may demand and carelessness,  negligence and unskillfulness are  transgressions of some established, but  indefinite, rule of action, where some   discretion is necessarily left to the actor.   Misconduct is a violation of definite law;  carelessness or abuse of discretion under an  indefinite law.  Misconduct is a forbidden  act; carelessness, a forbidden quality of an  act and is necessarily indefinite.   Misconduct in office may be defined as  unlawful behaviour or neglect by a public  official, by which the right of party have  been affected."

       Thus it could be seen that the word  ’misconduct’ though not capable of precise of  definition, on reflection receives its  conotation from the context, the delinquency  in its performance and its effect on the  discipline and the nature of the duty.  It  may involve moral turpitude, it must be  improper or wrong behaviour; unlawful  behaviour, wilful in character; forbidden act  a transgression of established and definite  rule of action or code of conduct but not  mere error of judgment, carelessness or  negligence in performance of the duty; the  act complained of bears forbidden quality or  character.  Its ambit has to be construed  with reference to the subject-manner and the  context wherein the term occurs, regard being  had to the scope of the statute and the  public purpose it seeks to serve.  The police  service is a disciplined service and it  requires to maintain strict discipline.   Laxity in this behalf erodes discipline in  the service causing serious effect in the  maintenance of law and order."

        [See also Probodh Kumar Bhowmick  Vs. University  of Calcutta (1994 (2) Calcutta Law Journal 456 and B.C.   Chaturvedi Vs. Union of India [1995 (6) SCC 749 ].  

Section 35 of the Advocates Act,  however, refers  to imposition of punishment for professional or other  misconduct.  A member of legal profession which is a  noble one is expected to maintain a standard in  dignified and determined manner. The standard required  to be maintained by the member of the legal profession  must be commensurate with the nobility thereof.  A  Lawyer is obligated to observe those norms which make  him worthy of the confidence of the community in him as  an officer of the court.  This Court in Bar Council,

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Maharashtra V. M.V.Dabholkar [ AIR 1976 SCC 242 ]  observed:-

"The high moral tone and the considerable  public service the bar is associated with and  its key role in the developmental and  dispute-processing activities and, above all,  in the building up of a just society and  constitutional order has earned for it a  monopoly to practise law and an autonomy to  regulate its own internal discipline."

       Although the power of the Bar Council is not  limited, the thrust of charge must be such which would  necessitate initiation of disciplinary proceedings.  A  professional or other misconduct committed by a member  of the profession should ordinarily be judged qua  profession.  To determine the quantum of punishment  which may be imposed on an advocate, the test of  proportionality shall be applied which would also  depend upon the nature of the acts complained of.   No  universal rule thus can be laid down as regard  initiation of a proceeding for misconduct of a member  of the profession.  

In ’M’ an Advocate (supra), however, this court  emphasized the requirement of maintaining a high  standard stating:-

       "As has been laid down by this Court in  the matter of ’G’, a Senior Advocate of the  Supreme Court (A) (supra) the Court, in  dealing with cases of professional misconduct  is "not concerned with ordinary legal  rights, but with the special and rigid rules  of professional conduct expected of and  applied to a specially privileged class of  persons who, because of their privileged  status, are subject to certain disabilities  which do not attach to their men and which do  not attach even to them in a non-professional  character ...he ( a legal practitioner) is  bound to conduct himself in a manner  befitting the high and honourable  professional to whose privileges he has so  long been admitted; and if he departs from  the high standards which that professional  has set for itself and demands of him in  professional matters, he is liable to  disciplinary action."

Application of the principle to the present case:

The disciplinary committee of the Bar Council of  India is a statutory body.  At the first instance the  duty to arrive at a finding of facts in respect of  complaint made against a member of the legal profession  is upon it.  This court although enjoys extensive and  wide jurisdiction under Section 38 of the Act, the  opinion of the Bar Council shall carry great weight.   The appellant herein had lodged complaint with the  State Bar Council on 5.3.1995 in relation to the 3  incidents allegedly occurred on 8.10.1993, 26.10.1993  and 1.3.1995.

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The Disciplinary Committee had considered the  conduct of the appellant herein in order to judge as to  whether the acts on the part of the respondents amount  to misconduct.   

There was absolutely no reason as to why the  appellant did not make any complaint to the State Bar  Council immediately of the incidents which took place  on 8.10.1993 and 26.10.1993.  If his contention to the  effect that in relation to the incident dated  26.10.1993 he had lodged a first information report  there was absolutely no reason as to why he did not  pursue the same seriously.  It is, as has been noticed  by the Bar Council of India, accepted that the police  filed final forms but despite the same the appellant  did not file any protest petition or initiate any other  proceeding before criminal court.  In relation to the  incident dated 1.3.1995 which allegedly took place  inside the court room it was expected of the appellant  or his advocate, who is said to be a retired district  judge, to bring the same to the notice of the court.   Even in relation to the incidents allegedly occurred on  8.10.1993 and 26.10.1993 no complaint was made before  the presiding officer of the court.  No proceeding was  initiated in relation to the purported incident on  1.3.1995.  

Can in the aforementioned fact situation, the  findings of the Bar Council, be said to be so  irrational meriting interference by this court is the  question?  We are of the opinion that it is not.  We  may further place on record that on a querry made by us  to Mr. Upadhyay as to whether any other incident had  taken place after 1.3.1995, the learned counsel  categorically stated that no such incident had  thereafter taken place.  We are, therefore, of the  opinion that the matter need not be pursued further.   

Case Laws:

Let us now consider the decision of this court  cited at the Bar. In ’M’ an Advocate (supra), this  court was dealing with a case where an advocate who had  been appearing in person had been an accused before a  magistrate where his conduct was found to be such which  amounted to commission of  professional misconduct.  He  continuously and persistently attempted to hold up the  trial and did everything in his power to bring the  administration of justice in contempt.  In the  aforementioned fact-situation, it was held that the  High Court was right in taking action against the  advocate concerned.  

In Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3)  SC 131] the concerned advocate assaulted his opponents  with a knife.  He was prosecuted and found guilty of  commission of an offence under Section 307 of the IPC.   In the aforementioned situation, it was held that the  advocate deserves the extraordinary punishment of  removal of his name from the state rolls of advocates.  

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       In N.G. Dastane V. Shrikant S.Shivde & Anr.[2001  (6) SC 135] an advocate in order to defend one of the  accused persons before a magistrate sought for  adjournments repeatedly and on 4.12.1993 an adjournment  was sought on the premise that he was unable to speak  on account of a throat infection and continuous cough  but the complainant came across the said advocate  "forcefully and fluently" arguing a matter before  another court situated in the same building.   Thereafter a complaint was lodged wherein a prime facie  case was found to have been made out.  This court  directed the Bar Council of India to deal with the  complaint.

       The aforesaid decisions of this court are not  applicable to the fact of the present case.   

Conclusion: We are, therefore, of the opinion that no case has  been made out for interfering with the impugned order.   

This appeal is dismissed.  But in the facts of the  case there shall be no order as to costs.