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PETITIONER: V. C. RANGADURAI

       Vs.

RESPONDENT: D. GOPALAN AND ORS.

DATE OF JUDGMENT04/10/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. SEN, A.P. (J)

CITATION:  1979 AIR  281            1979 SCR  (1)1054  1979 SCC  (1) 308  CITATOR INFO :  R          1983 SC 990  (10)  R          1985 SC  28  (30)

ACT:      Judicial legislation,  meaning of-Punishment under Sec. 35(3) of  the Advocates Act, 1961, applying the principle of legislation.      Appeal-Appeal under Sec. 38 of the Advocates Act, 1961, interference of the Supreme Court.      Disciplinary proceedings-Disciplinary proceedings under the Advocates Act, 1961-Nature and proof of.      Professional ethics  of a  member of  legal fraternity- Relations between a lawyer and a client explained.

HEADNOTE:      The appellant  was found  guilty of  gross professional misconduct by the Disciplinary Committee II of the State Bar Council,  Tamil   Nadu  and  was  therefore,  debarred  from practice as  an Advocate  for a  period  of  six  years.  In appeal, the  Bar Council  of India  upheld the said findings but reduced the period of suspension to one year.      Dismissing the appeal, the Court Per Iyer, J. (on behalf of Desai, J. and himself) ^      HELD: 1. Punishment has a functional duality-deterrence and  correction.   But  conventional  penalties  have  their punitive limitations  and flaws, viewed from the reformatory angle. A  therapeutic touch,  a correctional  twist,  and  a locus penitentiae,  may have  rehabilitative impact  if only Courts may experiment unorthodoxly but within the parameters of the law. [1057 F-G; 1058 E]      When   the   Constitution   under   Art.   19   enables professional  expertise   to  enjoy   a  privilege  and  the Advocates Act  confers a  monopoly, the  goal is not assured income but  commitment to the people whose hunger, privation and  hamstrung   human  rights  need  the  advocacy  of  the profession  to  change  the  existing  order  into  a  Human Tomorrow. [1058 B-C]      Justice  has   correctional  edge   a  socially  useful function especially  when the  delinquent is  too old  to be pardoned  and  too  young  to  be  disbarred.  Therefore,  a

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curative not  cruel punishment  has to  be designed  in  the social setting  of  the  legal  profession.  Punishment  for professional misconduct  is no  exception  to  this  ’social justice’ test. [1058 A, E]      In the present case, therefore, the deterrent component of the  punitive imposition  persuades non-interference with the  suspension  from  practice  reduced  ’benignly  at  the appellate level  to one  year. From the correctional angle a gesture from the Court may encourage the appellant to turn a new page. He is 1055 not too  old to  mend his ways. He has suffered a litigative ordeal, but more  importantly he has a career ahead. To give him an  opportunity to  rehabilitate himself by changing his ways, resisting  temptations and  atoning  for  the  serious delinquency, by  a more  zealous devotion  to people’s cause like legal aid to the poor may be a step in the correctional direction.[1058 E-G]      2.  Judicial   legislation  is   not  legislation   but application of  a given  legislation to  new  or  unforeseen needs and  situations broadly  falling within  the statutory provision. In  that sense,  interpretation is  inescapably a kind of  legislation. Legislation is not legislation stricto sensu but application and is within the Court’s province. So viewed the  punishment of suspension under Sec. 35(3) of the Advocates Act  serves two purposes-injury and expiation. The ends of  justice  will  be  served  best  in  this  case  by directing suspension  plus a  provision for  reduction on an undertaking to this Court to serve the poor for a year. Both are orders within this Court’s power [1060 F-H]      3. Section  35(3) has  a mechanistic  texture, a set of punitive pigeon  holes, but  words grow in content with time and circumstance, that phrases are flexible in semantics and the printed  text is  a set  of vessels into which the Court may pour  appropriate judicial meaning. That statute is sick which is  allergic to change in sense which the times demand and the text does not countermand. That Court is superficial which stops  with the  cognitive and  declines the  creative function  of   construction.  ’Quarrying’  more  meaning  is permissible out of Sec. 35(3) and the appeal provisions in a brooding background  of social justice sanctified by Art. 38 and  of  free  legal  aid  enshrined  by  Art.  39A  of  the Constitution.      [1059 A-B] Per Sen (J)      In an  appeal under  Sec. 38 of the Advocates Act, 1961 the Supreme  Court would  not, as  a general  rule interfere with the  concurrent findings  of fact  by the  Disciplinary Committee, Bar  Council of  India and  the State Bar Council unless the  findings is  based on no evidence or it proceeds on mere conjecture and unwarranted inferences. [1066 G-H]      When ’a lawyer has been tried by his peers’ the Supreme Court cannot interfere in an appeal with the finding in such a domestic  enquiry merely  because on a re-appraisal of the evidence a  different view  is possible.  In the  facts  and circumstances of  the case,  no other conclusion is possible than the  conclusion reached.  There is, therefore no ground for  interference  with  the  finding  of  the  Disciplinary Committee of the Bar Council of India. [1067 C-D]      2.  Disciplinary   proceedings  before  the  State  Bar Council are  sui generis,  are neither civil nor criminal in character and  are not  subject  to  the  ordinary  criminal procedural   safeguards.   The   purpose   of   disciplinary proceedings  is   not  punitive  but  to  inquire,  for  the protection  of   the  public,   the  Courts  and  the  legal

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profession into  fitness of  the subject  to continue in the capacity  of   an   advocate.   Findings   in   disciplinary proceedings must  be sustained  by a  higher degree of proof than that  required in civil suits, yet falling short of the proof  required  to  sustain  a  conviction  in  a  criminal prosecution. There  should be  convincing  preponderance  of evidence. That  test is  clearly fulfilled  in  the  instant case.      [1067-A-B]      3. It  is not in accordance with professional etiquette for one  advocate to  hand over his brief to another to take his place at a hearing (either for the whole or 1056 part of  the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course being  taken. Counsel’s  paramount  duty  is  to  the client;  accordingly  where  he  forms  an  opinion  that  a conflict of  interest exists,  his duty  is  to  advise  the client that  he should  engage  some  other  lawyer.  It  is unprofessional to represent conflicting interests, except by express  consent   given  by  all  concerned  after  a  full disclosure of the facts.                                                   [1067 D-E]      In the  instant case,  if there  was  any  conflict  of interest and  duty the  appellant should  have  declined  to accept the  brief. What is reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never  filed the  suits but  in a frantic effort to save himself, he threw the entire blame on his junior. [1068 B-C]      Nothing should  be done  by any  member  of  the  legal fraternity which  might tend  to lessen  in any  degree  the confidence of  the  public  in  the  fidelity,  honesty  and integrity of  the profession.  The relation between a lawyer and his  client is  highly fiduciary  in its nature and of a very  delicate,   exacting,   and   confidential   character requiring a  high degree  of fidelity  and good faith. It is purely  a   personal  relationship,  involving  the  highest personal trust  and confidence  which  cannot  be  delegated without consent.  A lawyer  when entrusted  with a brief, is expected to  follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies  a position  of trust.  The appellant completely betrayed the  trust reposed  in him  by the  complainants in this case.                [1067 F, G-H; 1068 A]      4. The punishment awarded by the Disciplinary Committee of the  Bar Council  of India  does not  warrant any further interference. In  a case like this, the punishment has to be deterrent. Any appeal for mercy is wholly misplaced. It is a breach of  integrity and  a lack  of probity for a lawyer to wrongfully with  hold the  money of his client and there was in this  case complete  lack of  candour on  the part of the appellant. [1068 D, F] (per contra)      (a) Where  it is  shown that  the advocate acted in bad faith towards  his client  in detaining  or misappropriating funds of  the client,  or that  the wrong  was committed  or aided by  means of  false representations,  fraud or deceit, the  fact   that  the   advocate  makes  restitution  to  or settlement with  the  client  will  not  prevent  disbarment especially where  restitution was  not made  until after the commencement of  the disciplinary proceedings. It is only an ameliorating circumstance  but does not mitigate the offence involved  in  the  misappropriation  particularly  when  the repayment is made under pressure. [1068 H, 1069 A]

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    (b)  When   there  is  disbarment  or  suspension  from practice, the  lawyer must  prove,  if  he  can,  after  the expiration  of   a  reasonable   length  of  time,  that  he appreciates the  significance of  his dereliction,  that  he possesses  the   good  character   necessary  to   guarantee uprightness and  honour in  his professional  dealings,  and therefore is  worthy to  be restored.  The burden  is on the applicant to  establish that  he is  entitled to  resume the privilege of  practising law  without restrictions. There is nothing of the kind in the present case. Even if the Supreme Court has the power to make such a direction, in terms of S. 38, the  Court has  a  duty  to  act  with  justice  to  the profession and  the public  as well as the appellant seeking reinstatement,  and  without  regard  to  mere  feelings  of sympathy for  the  applicant.  Feelings  of  sympathy  or  a feeling that  the lawyer  has been sufficiently punished are not grounds for reinstatement. [1068 B-D] 1057      (c) A  direction requiring  the advocate  to  undertake free legal aid during the  period of his suspension would be a contradiction  in terms.  Under s. 35(4), when an advocate is suspended  from practice  under cl.  (c)  of  sub-s.  (3) thereof, he  shall,  during  the  period  of  suspension  be debarred  from   practising  in  any  court  or  before  any authority or  person in  India. If  the  making  of  such  a direction  implies   the  termination   of  the   order   of suspension, on  the fulfilment  of the conditions laid down, no restriction on the right of the advocate to appear before any Court  or authority,  which privilege he enjoys under s. 30 of the Act, can be imposed.[1069 D-F] The Court directed:      (i) the  appellant to  pay a  sum of Rs. 2,500/- to the victim of  the misconduct and produce a receipt (ii) give an undertaking as  directed viz., accepting the suspension from practice upto  14th August 1979 and willingness to undertake work under any legal aid body in Tamil Nadu and convince the Chairman of  that  Board  to  accept  his  services  in  any specific place where currently there is an on going project, produce a  certificate in  this behalf  from the  Board  and (iii) agree  to do  only free  legal and  for  one  year  as reasonably directed  by the Board (and shall not during that period accept  any private engagement) so that the period of suspension shall  stand terminated  with effect from January 26, 1979.      [1061 A-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 839 of 1978.      From the  Judgment and  Order dated  11-3-1978  of  the Disciplinary Committee  of the  Bar Council  of  India,  New Delhi D.C. Appeal No. 14/75.      G. L. Sanghi and A. T. M. Sampath for the Appellant.      Nemo for the Respondent.      The following Judgments were delivered      KRISHNA IYER,  J.-We  agree  wholly  with  our  learned brother Sen,  J., that  the appellant  is  guilty  of  gross professional misconduct and deserves condign punishment. But conventional penalties  have their  punitive limitations and flaws, viewed  from the  reformatory  angle.  A  therapeutic touch, a  correctional twist,  and a  locus penitentiae, may have rehabilitative,  impact,  if  only  we  may  experiment unorthodoxly but  within the parameters of the law. Oriented

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on this  approach and  adopting the  finding  of  guilt,  we proceed to  consider the  penalty,  assuming  the  need  for innovation and departing from wooden traditionalism.      A middle-aged  man, advocate by profession, has grossly misconducted himself  and deceived a common client. Going by precedent, the  suspension from  practice for  one year  was none  too   harsh.  Sharp   practice  by  members  of  noble professions deserves  even disbarment.  The wages  of sin is death. 1058      Even so,  justice has  a correctional  edge, a socially useful function,  especially when  the delinquent is too old to be  pardoned and  too young to be disbarred. Therefore, a curative, not  cruel punishment  has to  be designed  in the social setting of the legal profession.      Law is  a noble  profession, true;  but it  is also  an elitist profession. Its ethics, in practice, (not in theory, though) leave  much to be desired, if viewed as a profession for the  people. When  the  constitution  under  Article  19 enables professional  expertise to enjoy a privilege and the Advocates Act  confers a  monopoly, the  goal is not assured income but  commitment to the people whose hunger, privation and  hamstrung   human  rights  need  the  advocacy  of  the profession  to  change  the  existing  order  into  a  Human Tomorrow. This  desideratum gives  the clue to the direction of the  penance of a devient geared to correction. Serve the people free and expiate your sin, is the hint.      Law’s nobility  as a  profession lasts  only so long as the  member  maintain  their  commitment  to  integrity  and service to  the community. Indeed, the monopoly conferred on the  legal  profession  by  Parliament  is  coupled  with  a responsibility-a   responsibility    towards   the   people, especially  the   poor.  Viewed   from  this   angle,  every delinquent who  deceives his  common client  deserves to  be frowned upon.  This approach  makes it  a reproach to reduce the punishment,  as  pleaded  by  learned  counsel  for  the appellant.      But,  as   we  have   explained  at  the  start,  every punishment, however, has a functional duality-deterrence and correction. Punishment  for professional  misconduct  is  no exception to  this ’social  justice’ test.  In  the  present case, therefore,  from the  punitive  angle,  the  deterrent component persuades  us not to interfere with the suspension from practice  reduced ’benignly’  at the appellate level to one year.  From the  correctional angle,  a gesture from the Court may  encourage the appellant to turn a new page. He is not too  old to  mend his ways. He has suffered a litigative ordeal, but  more importantly he has a career ahead. To give him an  opportunity to  rehabilitate himself by changing his ways, resisting  temptations and  atoning  for  the  serious delinquency, by  a more  zealous devotion to people’s causes like  legal   aid  to  the  poor,  may  be  a  step  in  the correctional direction.      Can these  goals be  accommodated within  the scheme of the statute? Benignancy beyond the bounds of law are not for judges to try. 1059      Speaking frankly, Sec. 35(3) has a mechanistic texture, a set  of punitive  pigeon holes, but we may note that words grow in content with time and circumstance, that phrases are flexible in  semantics, that  the printed  text is  a set of vessels into  which the  court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense  which   the  times  demand  and  the  text  does  not countermand. That  court is superficial which stops with the

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cognitive   and    declines   the   creative   function   of construction. So,  we take  the view  that ’quarrying’  more meaning is  permissible out  of Sec.  35(3) and  the  appeal provisions, in  the brooding  background of  social justice, sanctified by  Art. 38,  and of  free legal aid enshrined by Art. 39A of the Constitution.           "A statute  rarely stands  alone. Back  of Minerva      was the  brain of  Jove, and behind Venus was the spume      of the ocean."      (The Interpretation  and Application  of  Statutes-Read      Dickerson p. 103)      Back to the Act. Sec. 35(3) reads:           "The disciplinary committee of a State Bar Council      after giving  the advocate  concerned and  the Advocate      General an  opportunity of being heard, may make any of      the following orders, namely:-           (a)  dismiss   the   complaint   or,   where   the                proceedings were initiated at the instance of                the  State   Bar  Council,  direct  that  the                proceedings be filed;           (b)  reprimand the advocate;           (c)  suspend the  advocate from  practice for such                period as it may deem fit;           (d)  remove the  name of  the  advocate  from  the                State roll of advocates.      Sec. 37 provides an appeal to the Bar Council of India. It runs:      37(1)     Any person  aggrieved  by  an  order  of  the                disciplinary committee of a State Bar Council                made (under  section  35)  (or  the  Advocate                General of  the State) may, within sixty days                of the date of the communication of the order                to him,  prefer an  appeal to the Bar Council                of India. 1060           (2)  Every such  appeal  shall  be  heard  by  the                disciplinary committee  of the Bar Council of                India which may pass such order (including an                order varying  the punishment  awarded by the                disciplinary  committee   of  the  State  Bar                Council) thereon as it deems fit.      Section 38  provides a  further, final  appeal  to  the Supreme Court in these terms:           "Any person  aggrieved by  an order  made  by  the      disciplinary committee  of the  Bar  Council  of  India      under section 36 or Section 37 (or the Attorney General      of  India   or  the   Advocate  General  of  the  State      concerned, as  the case  may be) may, within sixty days      of the  date on which the order is communicated to him,      prefer an  appeal to  the Supreme Court and the Supreme      Court may  pass such  order (including an order varying      the punishment awarded by the disciplinary committee of      the Bar Council of India) thereon as it deems fit."      Section 35(3)  (c) enables suspensions of the advocate- whether conditionally  or absolutely,  it is  left  unclear. Section 37  (2) empowers  the Bar Council of India widely to ’pass such  order as  it deems  fit.’ And the Supreme Court, under Sec. 38 enjoys ample and flexible powers to ’pass such order.. as it deems fit’.      Wide as  the power may be, the order must be germane to the Act  and its  purposes, and  latitude  cannot  transcend those limits.  Judicial ’Legisputation’  to borrow a telling phrase of  J. Cohen, is not legislation but application of a given legislation  to new or unforeseen needs and situations broadly falling  within the  statutory  provision.  In  that

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sense,   ’interpretation    is   inescapably   a   kind   of legislation’. This  is not  legislation  stricto  sensu  but application, and is within the court’s province.      We have  therefore sought  to adapt  the punishment  of suspension to  serve two  purposes-injury and  expiation. We think the  ends of  justice will be served best in this case by directing suspension plus a provision for reduction on an undertaking to this court to serve the poor for a year. Both are orders within this court’s power. 1061      Tamil Nadu has a well-run free legal aid programme with which the  Governor and  Chief  Justice  of  the  State  are associated. The State Legal Aid Board, working actively with two retired  Judges of  the High  Court at the head, may use the services  of the  appellant keeping a close watch on his work and  relations with  poor clients, if he applies to the Legal Aid  Board for  giving him  such an opportunity, after getting this  court’s order as provided below. Independently of that,  as  a  token  of  our  inclination  to  allow  the appellant to  become people-minded  in  his  profession,  we reduce the  suspension from practice upto the 14th of August 1979. With  the next  Independence Day we hope the appellant will inaugurate  a better  career and  slough  off  old  bad habits. If  the appellant  gives an undertaking that he will work under  any official  legal aid  body in  Tamil Nadu and convinces the  Chairman of  the State Legal Aid Board, Tamil Nadu, to  accept his  services in  any specific  place where currently  there   is  an   on-going  project,   produces  a certificate in  this behalf  from the  Board, and  gives  an undertaking to  this Court  that he  will do only free legal aid for  one year  as reasonably  directed by the Board (and shall  not,   during  that   period,  accept   any   private engagement), his period of suspension shall stand terminated with effect  from January 26, 1979. As a condition precedent to his moving this court he must pay (and produce a receipt) Rs. 2,500/-  to the  victim  of  the  misconduct.  Atonement cannot be by mere paper pledges but by actual service to the people and  reparation for  the victim.  That is why we make this departure in the punitive part of our order.      Innovation within  the frame-work  of the law is of the essence   of   the   evolutionary   process   of   juridical development. From  that angle,  we think it proper to make a correctional experiment  as  a  super-addition  to  punitive infliction. Therefore,  we make  it clear that our action is less a precedent than a portent.      With  the  modification  made  above,  we  dismiss  the appeal.      SEN, J.-This  appeal under  section 38 of the Advocates Act, 1961  by V.  C. Rangadurai is directed against an order of the  Disciplinary Committee  of the  Bar Council of India dated March 11, 1978 upholding the order of the Disciplinary Committee-II of  the State  Bar Council, Madras dated May 4, 1975 holding  him  guilty  of  professional  misconduct  but reducing the  period of suspension from practice to one year from six years.      There can  be no doubt that the appellant had duped the complainants, T.  Deivasenapathy, an  old deaf  man aged  70 years and his aged wife Smt. D. Kamalammal by not filing the suits on two 1062 promissory notes for Rs. 15,000/- and Rs. 5,000/- both dated August 26,  1969 executed  by their  land-lady Smt. Parvathi Ammal, who  had borrowed  Rs. 20,000/- from them, by deposit of title deeds.      Admittedly, though  the  plaint  for  recovery  of  the

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amount due  on the  promissory note  for Rs.  15,000/-  with interest thereon  bearing court  fee  of  Rs.  1,519.25  was returned for  presentation to the proper court, it was never re-presented.  It   is  also  not  denied  that  though  the appellant had drafted the plaint for recovery of Rs. 5,000/- with interest no such suit was ever filed. In spite of this, the appellant made false representations to the complainants Deivasenapathy (P.W.  1), his  wife Smt. Kamalammal (P.W. 3) and the  power of  attorney agent  of the  complainants,  D. Gopalan (P.W.  2) that  the suits  had been  filed and  were pending, gave  them the  various dates  fixed in  these  two suits, and  later on  falsely told  them that  the court had passed decrees  on the basis of the two promissory notes. On the faith  of such  representation the complainants served a lawyer’s notice  dated December  25, 1973  (Ext. P-3) on the debtor Smt. Maragathammal, to the effect:           "That you  are aware  of my  clients’  filing  two      suits against  you for recovery of Rs. 15,000/- and Rs.      5,000/- with  due interest  and cost  thereon and it is      not to state that both the suits were decreed as prayed      for by my clients in the court proceedings.           My clients  further say  that in spite of the fact      that the  suits had  been decreed long ago you have not      chosen to  pay the  amount due  under  the  decrees  in      question and  on the  other hand  trying  to  sell  the      property by  falsely  representing  that  the  original      documents have  been lost to the prospective buyers. My      clients further  state that  you are  aware of the fact      that my  clients are  in  possession  of  the  original      documents relating  to the property bearing door No. 41      Shaik   Daood   Street,   Royapeeth,   Madras-14,   but      deliberately made  false  representation  as  aforesaid      with the  mala fide  intention to defeat and defraud my      clients’ amounts due under the decree.           My clients emphatically state that you cannot sell      the property in question without disclosing the amounts      due to them.....". 1063 It would thus appear that acting on the representations made by the   appellant,  the complainants called upon the debtor Smt. Maragathammal  to pay  the amount due under the decrees failing which  they had instructed their lawyer to bring the property to  sale. Actually  no such  suits had in fact been filed nor any decrees passed.      It is  argued  that  the  finding  as  to  professional misconduct on  the part  of the  appellant  reached  by  the Disciplinary Committee  of the  Bar Council  of India is not based  on   any  legal   evidence  but   proceeds  on   mere conjectures. It  is pointed out that the ultimate conclusion of the  Disciplinary Committee cannot be reconciled with its earlier observation  that it  was not prepared to attach any credence to the conflicting assertion of Deivasenapathy that he had  at first  handed over  Rs. 855/- on December 2, 1970 for filing  the suit  on the promissory note for Rs. 5,000/- and then  paid Rs. 2,555/- some time in July 1972 for filing the suit on the promissory note for Rs. 15,000/- which is in conflict with  the allegation  in the  lawyer’s notice dated February 21,  1974 (Ext.  R-1) that a sum of Rs. 3,410/- was paid on  July 17,  1972 to wards court fees and expenses for the filing  of the  two suits,  or that  the  various  dates marked in  the copies  of the two plaints, Ext. P-1 and Ext. P-2, were  indeed  given  by  him.  It  is  urged  that  the Disciplinary Committee  was largely  influenced by  the fact that the  appellant gave  the  receipt,  Ext.  R-7  to  K.S. Lakshmi Kumaran,  which was  found to  be forged. In view of

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the discrepancies  in the  testimony of Deivasenapathy, P.W. 1, Smt. Kamalammal, P.W. 3 and their agent, D. Gopalan, P.W. 2, it  was evident  that the  Disciplinary Committee  mainly based the charge of misconduct on mere suspicion. Lastly, it is said  that the  complaint was  a false  one  and  was  an attempt to  pressurize the  appellant to persuade his client Smt. Maragathammal to sell the house to the complainants. We are afraid, the contentions cannot be accepted.      In denial  of the  charge the  appellant  pleaded  that though he  had drafted the plaint in the suit to be filed on the basis  of the  promissory note  for Rs. 5,000/-, he felt that as  the debtor  Smt. Maragathammal had consulted him in another matter,  it would  be better  that the  complainants engaged some  other counsel and he advised them accordingly. He suggested  the names of two or three lawyers out of whom, the complainants  engaged K.  S. Lakshmi  Kumaran. He denied that the  two promissory  notes were  handed over  to him or that he  had received  any amount  by way  of court  fees or towards his fees. According to him, K.S.Lakshmi Kumaran was, therefore. instructed to file the suits.      K. S.  Lakshmi Kumaran, on the other hand, pleaded that he knew  nothing about  the suits but had in fact signed the Vakalat as a Junior 1064 counsel, as  a matter  of courtesy  at  the  behest  of  the appellant. He pleaded that he had never met the complainants nor had  he been  instructed by  them to  file the suits. He further pleaded  that when  the complainants served him with their lawyer’s notice dated February 11, 1974, Ext. R-11, he went and saw the appellant who told him that he had returned the plaint,  which was  returned by the court, together with all the  documents to  the complainant Deivasenapathy as per receipt, Ext.  R-7. On  February 21,  1974 the  complainants served another  lawyer’s notice on both the appellant and K. S. Lakshmi  Kumaran. The appellant and K. S. Lakshmi Kumaran sent their  replies to  this notice.  The appellant’s reply, Ext.  R-2,  was  practically  his  defence  in  the  present proceedings. K.  S. Lakshmi  Kumaran in his reply, Ext. R-5, refers to  the lawyer’s  notice,  Ext.  R-11,  sent  by  the complainants earlier and states that when he took the notice to the  appellant, he  told him  that the  papers were taken back from  him by  the complainant  Dievasenapathy  who  had passed on to him a receipt.      The Disciplinary  Committee, in  its carefully  written order, has  marshalled the  entire evidence  in the light of the probabilities  and accepted the version of K. S. Lakshmi Kumaran to be true. It observes:           "Earlier we  referred to  the conflict between the      two advocates.  We cannot  help observing  that we feel      there is  want of  candour and frankness on the part of      RD. On  a careful  consideration of the evidence we see      no reason  to reject  the evidence  of L that he merely      signed the  Vakalat and  plaint and when the plaint was      returned he took the return and passed on the papers to      RD." It then concludes stating:           "On an overall view of the evidence we hold that L      was not  directly engaged  by the parties and that when      the plaint with its annexures was returned, L passed it      on to  RD. We  also accept  L’s evidence  that when  on      receipt of  the notice  Ext. R-11  he  met  RD  he  was      informed that the case papers were taken back by P.W. 1      and that  some time  afterwards RD gave him the receipt      Ext. R-7..............           It must  be, that  when  the  complainants  turned

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    against RD  suspecting his  bona fide  he denied having      had anything  to do  in the  matter and  threw  up  his      junior colleague  in the  profession  stating  that  he      passed the  clients no  to L and had nothing more to do      with the  case. As  the clients  had no  direct contact      with L his statement that he handed over the 1065      plaint on  its return  to RD looks probable and likely.      We accept  it. When  a notice  was issued to him in the      matter he  went to  RD and RD gave him the receipt Ext.      R-7.   The   receipt   purports   to   be   signed   by      Deivasenapathy and  accepted it for what it was worth."      In that  view, both  advocates  were  found  guilty  of professional misconduct,  but  differing  in  character  and different in  content. In  dealing  with  the  question,  it observes:           "As regards RD, the litigants entrusted the briefs      to him  whatever their  motive.  The  record  does  not      establish that  before entrusting  the case  to  L  the      complainants were  introduced by  RD to  L  and  L  was      accepted by them as counsel in charge of the case."      It condemned  both the  advocates for their dereliction of duty,  but only  reprimanded K.  S. Lakshmi  Kumaran, the junior advocate,  because he never knew the complainants and had signed  the vakalat at the bidding of the appellant, but took a  serious view of the misconduct of the appellant, and castigated his  whole conduct  in  no  uncertain  terms,  by observing:      "Finding himself in difficulties RD miserably failed in      his duty to his fellow advocate very much junior to him      in the profession and who trusted him. The conduct of a      lawyer to  his  brothers  in  the  profession  must  be      characterised by  candour and  frankness. He  must keep      faith with  fellow members  of  the  bar.  While  quite      properly RD  did not  accept the  engagement himself we      are  of  the  view  that  he  has  been  party  to  the      institution of  a suit  tended  merely  to  harass  the      defendants in  the suit,  with a  view to  secure  some      benefit for the other party-manifestly unprofessional." It went on to observe:      "The only  casualty is RD’s professional ethics in what      he might  have thought was a gainful yet good samaritan      move. When  the move failed and there was no likelihood      of his  success, the  complainants turned  against  him      securing for  their help  their power of attorney. Then      fear psychosis  appears to  have set  in, leading RD to      totally deny  his involvement  in the  plaint that  was      filed and  let down  the  junior  whose  assistance  he      sought. We see no other probability 1066      out of  the tangled  web  of  exaggerations,  downright      denials, falsehood  and fabrications  mingled with some      truth."      May be,  the complainants  were  not  actuated  from  a purely altruistic  motive in  lodging the complaint but that does  not  exonerate  the  appellant  of  his  conduct.  The suggestion that  the complaint was false one and constituted an attempt  at blackmail  is not  worthy of  acceptance. The property was actually sold to M. M. Hanifa for Rs. 36,000 by registered  sale  deed  dated  August  1,  1974,  while  the complaint was  filed in  April 1974.  We do  not see how the initiation of  the proceedings  would have  pressurised  the appellant to  compel his  client Smt.  Maragathammal to part with the  property for Rs. 20,000/- the price offered by the complainants. It  is no  doubt true  that at  one stage they

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were negotiating for the purchase of the house of which they were the  tenants but the price offered by them was too low. The Disciplinary  Committee of  the  Bar  Council  of  India summoned the  purchaser and  he stated  that  from  December 1973, he  had been  trying to  purchase the  property. It is also true  that in  response to  the notice  dated August 1, 1974 served  by the  purchaser asking  the  complainants  to attorn to  him, they  in their  reply dated  August 8,  1974 expressed  surprise   that  he  should  have  purchased  the property for Rs. 36,000/- when in fact it was not worth more than Rs. 26,000/-      It matters little whether the amount of Rs. 3,410/- was paid to  the appellant  in a lump sum or in two instalments. Deivasenapathy, P.W.  1 faltered  when confronted  with  the notice Ext.  R-1 and  the Disciplinary  Committee of the Bar Council of  India has  adversely commented on this by saying that he  is not ’an illiterate rustic’ but is an M.I.S.E., a retired Civil  Engineer. This  by itself does not disapprove the payment of the amount in question. It may be the general power of  attorney, D.  Gopalan, P.W.  2, made  a mistake in instructing the counsel in giving the notice. As regards the various dates  appearing on  the copies  of the two plaints, Exts. P-1 and P-2, the complainants could not have got these dates by themselves unless they were given by the appellant.      In an  appeal under  section 38  of the Act, this Court would not,  as a general rule, interfere with the concurrent finding of  fact by  the Disciplinary  Committee of  the Bar Council of  India and  of the  State Bar  Council unless the finding is  based on  no evidence  or it  proceeds  on  mere conjecture and  unwarranted inferences. This is not the case here.      Under  the   scheme  of   the  Act,   the  disciplinary jurisdiction vests  with the  State Bar  Council and the Bar Council of India. Disciplinary 1067 proceedings before  the State  Bar Council  are sui ceneris, are neither  civil nor  criminal in  character, and  are not subject to  the ordinary criminal procedural safeguards. The purpose of  disciplinary proceedings  is not punitive but to inquire, for  the protection  of the  public, the courts and the  legal  profession,  into  fitness  of  the  subject  to continue  in  the  capacity  of  an  advocate.  Findings  in disciplinary proceedings  must  be  sustained  by  a  higher degree of  proof than  that required  in  civil  suits,  yet falling short  of the proof required to sustain a conviction in  a  criminal  prosecution.  There  should  be  convincing preponderance of evidence. That test is clearly fulfilled in the instant case.      When ’a  lawyer has  been tried  by his  peers’, in the words of  our brother  Desai J., there is no reason for this Court to  interfere in  appeal with  the finding  in such  a domestic enquiry  merely because  on a  reappraisal  of  the evidence a  different view  is possible.  In the  facts  and circumstances of  the case,  we are  satisfied that no other conclusion is  possible than  the  one  reached.  There  is, therefore, no  ground for  interference with  the finding of the Disciplinary Committee of the Bar Council of India.      It is not in accordance with professional etiquette for one advocate  to hand  over his brief to another to take his place at  a hearing  (either for  the whole  or part  of the hearing), and  conduct the case as if the latter had himself been briefed,  unless the  client consents  to  this  course being taken.  Council’s paramount  duty is  to  the  client; accordingly where  he forms  an opinion  that a  conflict of interest exists,  his duty  is to  advise the client that he

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should engage  some other  lawyer. It  is unprofessional  to represent conflicting  interests, except  by express consent given by all concerned after a full disclosure of the facts.      Nothing should  be done  by any  member  of  the  legal fraternity which  might tend  to lessen  in any  degree  the confidence of  the  public  in  the  fidelity,  honesty  and integrity  of  the  profession.  Lord  Brougham,  then  aged eighty-six, said  in a speech, in 1864, that the first great quality of an advocate was ’to reckon everything subordinate to the  interests of his client’. What he said in 1864 about ’the paramountcy  of the client’s interest’. is equally true today. The  relation between  a lawyer  and  his  client  is highly fiduciary  in its  nature and  of  a  very  delicate, exacting, and confidential character requiring a high degree of  fidelity  and  good  faith.  It  is  purely  a  personal relationship,  involving  the  highest  personal  trust  and confidence which  cannot be  delegated  without  consent.  A lawyer when  entrusted with  a brief,  is expected to follow the norms  of professional  ethics and  try to  protect  the interests of  his clients, in relation to whom he occupies a position of trust. The 1068 appellant completely  betrayed the  trust reposed  in him by the complainants.      It is  needless to  stress that in a case like this the punishment has  to be  deterrent. There  was  in  this  case complete lack  of candour  on the  part of the appellant, in that he  in a  frantic effort  to save  himself,  threw  the entire blame  on his  junior, K.  S.  Lakshmi  Kumaran.  The evidence on  record clearly  shows that it was the appellant who had  been engaged  by the  complainants to file suits on the two  promissory notes for recovery of a large sum of Rs. 20,000/- with  interest due thereon. There was also complete lack of  probity on  the part  of the  appellant because  it appears that  he knew the debtor, Smt. Maragathammal for 7/8 years and  had, indeed, been appearing for her in succession certificate  proceedings.  If  there  was  any  conflict  of interest and  duty, he  should have  declined to  accept the brief. What  is reprehensible  is that  he not only accepted the brief,  pocketed the  money meant  for court  fees,  and never filed the suits.      The appeal for mercy appears to be wholly misplaced. It is a  breach of integrity and a lack of probity for a lawyer to wrongfully withhold the money of his client. In a case of such grave  professional misconduct,  the State  Bar Council observes that  the  appellant  deserved  the  punishment  of disbarment, but looking to his young age, only suspended him from practice  for a  period of  six years. The Disciplinary Committee of  the Bar  Council of  India has already taken a lenient view  and reduced  the period of suspension from six years to  one year,  as in its view the complainants did not suffer by the suits not being proceeded with because even if they had  obtained decrees  for money, they would still have been required  to file  a regular mortgage suit for the sale of the property charged.      In the facts and circumstances of the case, I am of the view  that   the  punishment  awarded  by  the  Disciplinary Committee of  the Bar  Council of India does not warrant any further interference.      I have  had the advantage of reading the judgment of my learned brother  Krishna Iyer  for the  restitution  to  the appellant of  his  right  to  practice  upon  fulfilment  of certain conditions.  I  have  my  own  reservations  in  the matter, that is, whether any such direction should at all be made in the present case.

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    Where it  is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client,  or that  the wrong  was committed  or aided  by means of  false representations,  fraud or  deceit, as here, the fact that the advocate makes restitution to 1069 or settlement  with the  client will not prevent disbarment, especially where  restitution was  not made  until after the commencement of  the disciplinary proceedings. It is only an ameliorating circumstance  but does not mitigate the offence involved in  the  misappropriation,  particularly  when  the repayment is made under pressure.      When there  is disbarment  or suspension from practice, the lawyer  must prove, if he can, after the expiration of a reasonable  length   of  time,   that  he   appreciates  the significance  of  his  dereliction,  that  he  has  lived  a consistent life  of  probity  and  integrity,  and  that  he possesses  the   good  character   necessary  to   guarantee uprightness and  honour in  his professional  dealings,  and therefore is  worthy to  be restored.  The burden  is on the applicant to  establish that  he is  entitled to  resume the privilege of  practising law  without restrictions. There is nothing of the kind in the present case.      Further, even  if this Court has the power to make such a direction.  in terms of s. 38, the Court has a duty to act with justice to the profession and the public as well as the appellant seeking  reinstatement, and without regard to mere feelings of sympathy for the applicant. Feelings of sympathy or a  feeling that the lawyer has been sufficiently punished are not grounds for reinstatement.      I also  doubt whether a direction can be made requiring the advocate  to undertake  free legal aid during the period of his  suspension. This  would be a contradiction in terms. Under s.  35(4), when an advocate is suspended from practice under cl.(c)  of sub-s.  (3) thereof,  he shall,  during the period of  suspension, be  debarred from  practising in  any court or  before any  authority or  person in  India. If the making on  such a  direction implies  the termination of the order of  suspension, on  the fulfilment  of the  conditions laid down,  I am  of the considered view that no restriction on the  right of  the advocate to appear before any court or authority, which privilege he enjoys under s. 30 of the Act, can be imposed.      The taking,  of too  lenient a  view in  the facts  and circumstances of the case, I feel, would not be conducive to the disciplinary control of the State Bar Councils. I would, for these  reasons, dismiss  the  appeal  and  maintain  the punishment imposed on the appellant.      In conclusion,  I do  hope  the  appellant  will  fully reciprocate the  noble gesture shown to him by the majority, come up  to their  expectations and turn a new leaf in life. It should be his constant endeavour to keep the fair name of the great profession to which he belongs unsullied. S.R.                                       Appeal dismissed. 1070