V. C. Rangadurai vs D.

Gopalan And Ors on 4 October, 1978

Equivalent citations: 1979 AIR 281, 1979 SCR (1)1054
Author: V Krishnaiyer
Bench: Krishnaiyer, V.R.
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
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
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]
(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 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.

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.
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
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.
(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 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.

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 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 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.....".

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 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 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 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 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 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 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 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 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 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.
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 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.