1. This is a difficult case. The Bar Council Tribunal has found the charge of professional misconduct which it framed against the Advocate of inordinate delay in the presentation of a petition, not to be proved, but the correctness of that finding has been challenged before us. In considering this matter I think that in the first place it is convenient to state shortly the facts which are not in dispute.
2. The complainant had been a lower division clerk in the Central Excise Department, but his services were terminated by a notice which expired on 30-6-1956. He was then residing in Rampur, and on the 4th July he came to Allahabad to instruct an Advocate of this Court to file a petition under Article 226 of the Constitution for the purpose of having notice terminating his services quashed. The Advocate's services were engaged and he prepared the requisite petition and affidavit. The affidavit was sworn by the complainant at 6.30 p.m. on Friday, the 13th July, and the complainant returned to Rampur that night. The High Court, which was then closed for the vacation, reopened on the following day, the Court's sittings recommencing on Monday, the 16th July.
3. In August the complainant wrote a letter to the Advocate's office (as none of the complainant's letters were preserved it is not certain to whom they were actually addressed) asking for information about the progress of his petition. To this letter the Advocate's head clerk, Raunaq Hussain, replied on the 8th August as follows :
'Received your letter. No order has yet been passed in your writ. When any order is passed 1 shall inform you at once. You may remain contended.'
At the end of October the complainant wrote again and on the 2nd November the head clerk sent a post card to the complainant saying
'Received your letter. No order has yet been passed in your writ. But now the argument will be made soon and I will inform you of the result immediately. You may remain contended (sic).'
4. On the 22nd November the Advocate signed the petition.
5. In December, 1956, and again in January and in February, 1957, the complainant made an enquiry in writing with regard to the progress of his case. In reply to these enquiries he was informed by Raunaq Husain on the 6th December and 29th February and by another clerk, Mohammad Haider on the 19th January, that no orders had yet been passed and that he would be informed of the result as soon as it was known. On the 19th April, 1957, Court-fee stamps of the value of Rs. 7-8-0 were purchased and affixed to the petition and vakalatnama.
6. On 8-5-1957, the petition was filed, and an order was obtained allowing the petitioner time until the 20-7-1957, that is, until after the vacation of 1957, for filing a supplementary affidavit to explain the delay in the presentation of the petition.
7. On the 10th May a post card was sent to the complainant by the clerk Mohammad Haider in these terms :
'The above mentioned case was presented for argument for admission on 9-5-1957. There was considerable argument, and after argument the Court has required a supplementary affidavit from you for certain things. Therefore come at once so that your affidavit may be given and the arguments will be made.'
The complainant accordingly came to Allahabad on the 14th May and saw the Advocate who told him that the draft of the requisite affidavit would be sent to him at Rampur. He returned to Rampur the same evening. In the last week of May the Advocate left India for Iraq whence he returned on the 2nd July. In the meantime the head clerk Raunaq Husain had received two or more letters from the complainant, presumably enquiring why lie had not received a draft affidavit. To these letters Raunaq Husain replied on the 17th June as follows : 'Received your letters. On account of High Court vacation, Vakil Saheb has gone to Karbalai Mulla. Probably he will be back by the 1st week of July. No affidavit could therefore be sent. On his return God willing, I shall send the same.' No supplementary affidavit was however filed, and on 22-8-1957, the petition was dismissed by Mr. Justice Chaturvedi primarily on the ground that the Inordinate delay in the presentation had not been satisfactorily explained. An oral application by the Advocate for further time within which to file a supplementary affidavit was refused. The fact of the dismissal of the petition was communicated to the complainant by Raunaq Husain in a letter dated the 24th August in these terms :
'After presentation and argument on 22-8-1957 your writ was dismissed by the Court. I am very sorry for it. No stone was left unturned; after preparation with the help of your notes arguments were made before the Court but the Court rejected it. The complainant asked for a copy of the judgment and sent a sum of Rs. 5, the amount asked for by Raunaq Hasain, in the first week of October, 1957. On the 6th October Raunaq Husain wrote to the complainant stating that he hoped to be able to send the copy of the judgment in a week or ten days; and on the 6th December he again wrote saying that application for the copy had been made and that it would be sent as soon as possible. Application for the copy was not however made until the 13th January, 1958, and it was sent to the complainant on the 20th January.
8. The complainant's case is that no fee was settled with the Advocate but it was agreed that the complainant should pay such expenses as were necessary from time to time, and that between the 4th and 13th July he paid to the Advocate the sum of Rs. 220/-, He then returned to Rampur in the confidence that his petition would be filed and he would be informed of the result in due course; and it was only when he received a copy of Mr. Justice Chaturvedi's order that he realised that there had been great delay in the presentation of the petition and that the latter had been dismissed on this ground.
9. The Advocate's case is that his fee was agreed at Rs. 300 and that in addition the complainant would pay Rs. 30 as his clerk's fee and Rs. 30 as expenses -- a total of Rs. 360. It was, according to the Advocate, further agreed that the complainant was to pay half the agreed fee, half the clerk's fee and the expenses -- a total of Rs. 195/- before the petition was moved; that the complainant paid only Rs. 100/- and the Advocate was accordingly under no legal obligation to move the petition.
10. Now the law I take to be clear. An Advocate who accepts instructions to act for a client is bound to do so even if he has not rieceived his fee, wholly or in part, unless the client terminates the contract or the latter contains a provision that the Advocate is under no obligation to act unless his fee (or a stated part of it) is first paid to him; and where it is not in dispute that the Advocate was engaged by the client, the burden of proving that special provision lies on the Advocate; Emperor v. Rajani Kanta Bose, AIR 1922 Cal 515 (SB).
11. The Bar Council Tribunal's findings in this case, as in any other, are entitled to he treated with great deference, but they are not binding on the Court. The Court is entitled to examine the whole of the circumstances, and if it comes to the conclusion that the Tribunal's findings cannot be supported and that the Advocate is guilty of professional misconduct it is its duty to hold him guilty.
12-18. The basic problem in this case is to ascertain the terms of the arrangement entered into by the Advocate with the complainant. (His Lordship considered oral and documentary evidence and proceeded).
19. The conclusion to which I come after a careful consideration of the evidence is that the alleged special agreement that the Advocate would be under no obligation to move the petition until a further sum of Rs. 95 was paid by the complainant has not been proved. There is no direct evidence that any such agreement was made; the complainant denies it, the head clerk does not mention it, and the Advocate has no personal knowledge of it. There is in truth no evidence to establish prima facie the existence of the special agreement which can be corroborated by evidence of the subsequent conduct of the parties.
20. I am accordingly of opinion that the Advocate has no reasonable excuse for the inordinate delay in filing the petition, and is therefore guilty of professional misconduct.
21. There is no doubt that the complainant has been badly treated, but I exonerate the Advocate from having any deliberate intention of causing him harm. The Advocate placed undue trust in his clerk; and his clerk has, if I may use a colloquial expression, let him down. In the circumstances I think that it is sufficient if the Court reprimands the Advocate, and I would make an order to that effect.
22. Before parting with this case there is one further matter to which I think I should refer. The Tribunal has expressed the opinion that an Advocate cannot be held responsible for the actions of his clerk done without his knowledge or authority. In the view I take, it is hot necessary in this case to examine the correctness of this opinion, but I should not be taken as assenting to it. If an Advocate entrusts the entire management of his office to his clerk and allows him to conduct all the correspondence with his clients, without exercising power and reasonable control and the client thereby suffers loss, I am not prepared to say that he cannot be guilty of professional misconduct.
23. I regret. I do not agree with the view taken by my brother Mukerji.
24-33. It is admitted that though the complainant briefed the advocate in the second week of July, 1956, and though the writ petition and the affidavit were prepared on 13-7-1956, the petition was not filed in the Court until on 8-5-1957 and the sole explanation given by the Advocate for this enormous delay is that a balance of Rs. 95/- on account of his fee was outstanding from the complainant and that the complainant had promised to pay it before the filing of the petition. The complainant's case on the other hand is that nothing was fixed on account of the fee payable to the Advocate but he had to pay the expenses when needed. There is nothing but oral evidence to prove what was the contract between the complainant and the advocate; on the one hand there is the testimony of the complainant and on the other hand there is the testimony of the Advocate's clerk.
The case of the advocate and his clerk is that the contract was made with the clerk and not the advocate. The clerk deposed that the practice in the advocate's office was that he used to see the clients, fix the fee to be paid to the advocate and settle accounts of expenses. The advocate corroborated him by saying that his fee used to be settled by his clerk and that he had given general instructions to him to issue a memo of expenses to every client stating the details of expenses and the fee, the amount received from him and the balance left outstanding.
As against this there is the complainant's testimony to the effect that he had brought a letter of introduction from Sri Sayeed Hasan, a Sanitary Inspector, who is related to the advocate, and that he had met the advocate himself and briefed him. The Advocate denied in a half hearted manner ('so far as I recollect') that any letter of introduction was brought by the complainant but did not deny that he is related to Sri Sayed Hasan and has not examined him to disprove the complainant's evidence. As regards the exact terms of the contract I see no reason to disbelieve the complainant and to believe the clerk, who has proved himself to be an absolutely unscrupulous and unreliable man . (His Lordship discussed the evidence and continued). I] am not prepared to agree with its (Tribunal's Ed) view in respect of the duties and responsibilities of a lawyer to his client. It found the advocate guilty of negligence in postponing the filing of the petition till 8-5-1957 but did not find any element of moral turpitude or delinquency in addition to negligence. It absolved him of all responsibility for the letters written by his clerk to the complainant but without considering whether he discharged his obligation to the client and the Court by keeping them informed of material facts. It accepted without adequate scrutiny the statement of the advocate that he did not know the contents of the letters and that his clerk never consulted him before answering any client's letters.
34. A question arose at the outset whether the complainant had a right to take part in the proceedings before the Court. The proceedings are under Section 10 of the Bar Councils Act, 1926, for reprimand, suspension or removal from practice of the advocate on the ground of professional or other misconduct; on receipt of the finding of the Tribunal the High Court is required by Section 12 to fix a date for the hearing of the case, to give notice of the date to the advocate, the Bar Council and the Advocate-General and to hear them before passing orders in the case. Merely because it is not said in the section that a notice of the date fixed for the hearing should be given to the complainant and that he or his counsel should be heard before the orders are passed, it cannot be held that the complainant or his counsel has no right to be heard.
The advocate is one party and the complainant is the other party, neither the Bar Council nor the Advocate-General being in the position of a party. I find that the complainant has been allowed to appear before the High Court in such proceedings without any objection; see In re William Robert Davies, a Solicitor, (1898) 14 TLR 332, In re James. Crowdy, A Solicitor, Ex parte Incorporated Law Society, (1895) 11 TLR 406, In re An Advocates : AIR1935Cal484 and In re, A Solicitor, Ex parte Law Society, 1912-1 KB 302. In re Bar Councils Act : AIR1930Cal574 the Court observed at p. 727 (of ILR Cal): (at p. 575 of AIR) that 'the complainant, after the matter has been referred to the Tribunal, is not in any way a person who is like a plaintiff dominus litis', but that was in connection with the right of a complainant to compromise with the advocate before the tribunal and not with his right to be heard before the High Court.
35. The Act does not make the report of the Tribunal binding on the High Court. The responsibility for the final orders is of the High Court of which it cannot be divested. The provision in Section 12(4) that the High Court has the power to refer the case back for further inquiry to the Tribunal shows that it is not bound by it. 'The law Society are very good judges of what is professional misconduct as a solicitor', per Darling J. in 1912-1 KB 302, at p. 312 and Rajasooria v. Disciplinary Committee. (1955) 1 WLR 405. In : AIR1930Cal574 , Buckland J. said at page 728 (of ILR Cal) : (at p. 575 of AIR) that 'the Bar Council......is in the position of a trustee and guardian of the dignity and privileges of the Bar and the rights and duties of its members.' So great weight is to be attached to the report of a Bar Council Tribunal, but that is all.
In the case of James Crowdy, (1895) 11 TLR 406 Lord Russell of Killowen, C. J., observed at p. 406; 'Though the Court would treat with great deference the findings of the committee, the Court was not bound by those findings. If, therefore, there were facts on which the respondent ought to be found guilty, then Court might find him guilty, though the committee had acquitted him. Secondly, it was important that the whole of the circumstances should be considered.'
In the case of William Robert Davies, (1898) 14 TLR 332, A. L. Smith, L. J., stated at p. 333;
'Although no doubt the greatest weight ought to be attached to the findings contained in such a report, it was competent to the Court to go into the facts for itself and to decide whether or not it agreed with those findings.'
In the matter of an Advocate of the High Court : AIR1932Mad131 , a Full Bench of the Madras High Court, while conceding that the opinion of the tribunal is entitled to great weight, reviewed the evidence itself and held the charges against the advocate proved though the tribunal had held otherwise. In re A Solicitor, (1924) 93 LJ KB 761, was an appeal from a committee of the law society for reduction of the penalty imposed by the committee.
The Solicitors Act quite deliberately adopted the view that in the first instance at any rate, it is for the law Society to control the setting of its house in order. Consequently though the Act gives an appeal to the advocate and the appeal is in the nature of a rehearing, Lord Hewart, C. J., said at p. 763:
'This Court should pay the greatest attention not only to the findings of the committee under this Act, but also, and not least, to the mode in which that experienced body has exercised its discretion.'
Roche, J., agreeing stressed the undesirability of the Court's interfering lightly with the judgment of the committee and with the discretion exercised by it. These observations have little application in the instant case. In in re An Advocate, High Court : AIR1935All503 , a Special Bench of this Court accepted the finding of a tribunal, even though a member was not satisfied that it was correct, because there was no objection to the finding.
The finding of the Tribunal is entitled to great weight but is certainly not binding on us and when we find that it has not given due weight to all the circumstances in the case, we would be fully justified in reviewing the evidence ourselves and in coming to a different conclusion.
36. The case against the advocate rests uponprofessional misconduct and not upon any othermisconduct. Professional misconduct has been explained in the case of A Solicitor, 1912-1 KB 302.Darling J., at p. 311 adopted the following definitionof professional misconduct:
'If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by His professional brethren of good repute and competency, then it is open to the General Medical Council to -say that he has been guilty of infamous conduct in a. professional respect.'
The Privy Council approved of the definition in G.F. Grahame v. Attorney-General of Fiji . 'Misconduct' is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though they are not inherently wrongful; see 58 Corpus Juris Secundum. 'Misconduct' 818. In Corpus Juris Secundum 'Attorney and Client', 742, it is said that professional misconduct may consist 'in fact in any conduct which tends to bring reproach on the legal profession or to alienate the favourable opinion which the public should entertain concerning it'.
For an attorney to act towards a client otherwise than with the utmost good faith is unprofessional; see 5 Am Jur 422, Attorneys-at-Law, Section 268, quoted in 94 Law Ed. 134 (Anno.). The question in a case of professional misconduct is whether the acts done by the advocate make it unfit that he should remain a member of the strictly honourable profession; neither is the case a trial nor is the removal of his name from the roll a punishment.
What the Court does in the case is to exercise its discretion whether a man whom it formerly admitted is a proper person to be continued on the roll or not, see In re Weare, a Solicitor, (1893) 2 QB 439 per Lord Esher M.R., at pp. 433 arid 445, and Southern Law Society v. Westbrook, 10 CLR 609. In Ex parte J. B. Wall, (1882) 107 US 265: 27 Law Ed. 552, it was said that the proceeding is not for the purpose of punishment but for that of preserving the Courts of justice from the official ministration of persons unfit to practise in them. It was observed by Reed J., in Sacher v. New York Bar Association, (1953) 98 Law Ed. 790 at p. 793: 347 US 388:
'Disbarment is not punishment ...... but a cleansing of the bar by ousting.'
'The basis of the Court's disciplinary jurisdiction......is not any privity or breach of warranty of authority as between them and their clients, but a duty of proper conduct owed by them to the Court itself as officers of the Court.' per Chakravartti C. J., in the matter of an Attorney : AIR1955Cal113 . In the Matter of Ashutosh Mukherjee, 36 Ind Cas 874: (AIR 1917 Cal 609 (2)), a pleader was suspended for acting Without due care and caution and without that sense of responsibility which should govern the conduct of all officers of the Court in matters of. ....importance'. In Crowdy's case, (1895) 11 TLR 406, the Lord Chief Justice expressed the view that 'the greater the confidence reposed in a professional man the greater was the importance of his conforming to the highest standard as a professional man'. Having regard to, these observations I come to the conclusion that the advocate is proved to be guilty of professional misconduct.
37. I find in the first instance that he was engaged by the complainant to file the petition in the Court and that he filed it so late that it Was dismissed on the ground of delay. I find no truth in the only reason given by him that he delayed the filing of the petition because of a special arrangement with the complainant that it would not be filed until the balance of the fee was paid. He had accepted instructions and the vakalatnama was signed in his favour. Even if some fee remained unpaid he was bound to file the petition in the Court within reasonable time. In 71 Ind Cas 81: (AIR 1922 Cal 515), Sanderson C. J., referring to some pleaders' refusing to come to Court to protect their clients' interest said at p. 91 (of Ind Cas): (at p. 519 of AIR):
'It was their duty to do so, unless it is proved that their obligations towards their clients, entitled by the acceptance of the vakalatnama were limited by a special arrangement accompanying the acceptance of the vakalatnama. No such special arrangement has been proved by the pleaders, upon whom the onus of proving it lay.'
Sankaran Nair, J., said in Muni Reddi v. Venkata Rao, ILR 37 Mad 238 at p. 261: (AIR 1914 Mad 512 at p. 522), that:
'a vakil is bound to appear and conduct his case even if the fee or any portion thereof remains unpaid, in the absence of any agreement to the contrary or at least notice to that effect to the client in sufficient time to enable him to make other arrangements.'
In Dogar Mal Ameer Chand v. P. a pleader, AIR 1930 Lah 947, it was found as a matter of face that the pleader signed the vakalatnama on the distinct understanding that the payment made was only a part payment and that the balance would be paid later. Because of the special agreement Shadi Lal C. J., and Agha Haidar J., held that the mere signing of the vakalatnama cast no duty upon the pleader to appear for the client in Court. But they pointed out that when the client is putting off the paying of fee the pleader would be well advised to serve a registered notice upon him in good time intimating to him that if he did not pay the fee he would repudiate all responsibility 3s a pleader.
No such notice was given by the advocate in the present case. In the matter, of F, a Mukhtar, AIR 1929 Pat 337 (SB), the mukhtar was punished by a Special Bench for refusing to file an appeal in time. He had accepted instructions from his client who had not paid him money for purchasing the court-fee stamp. He did not inform the client to produce a stamp. Courtney-Terrell C. J. said at p. 336:
''He should have communicated with the client personally and should have told him that he was no longer able to consider himself in the position of being retained as the legal adviser of the client. Tt is necessary to emphasise this obligation of a legal adviser to a client. It is not right that a legal adviser should be able to come after the lapse of a period of time and should say it is true that I accepted instructions from you but those instructions were conditional upon my receiving my remuneration. If the client does not produce the necessary remuneration it is the duty of the legal adviser to go back to the client and then and there repudiate the instruction. The absence of the necessary remuneration does not absolve the legal adviser from his obligations to his client unless the matter is brought specifically to the notice of the client and that view of the matter must be borne in mind by practitioners, particularly those who have the very responsible duty of appearing for very poor clients.'
These observations of the learned Chief Justice are fully applicable in the instant case and the advocate must be held to be guilty of a serious breach of professional duty to the complainant as F was. It was said In re Mahbub Ali Khan AIR 1958 Andh Pra 116 that an advocate who has accepted a vakalatnama and filed it in Court is ordinarily bound to appear and conduct his case in the absence of an agreement to the contrary and that if he fails, he renders himself liable to disciplinary action by the Court.
The Council of the Law Society, England, has announced that it considers that a solicitor who neither attends in Court himself nor makes arrangements for a responsible member of his staff to be present, fails in his duty towards the Court, his client and his profession; see (1958) 5 Current Law 276. Abandonment of the client's interests after receipt of a fee has been held to be a ground for disciplinary action; see 7 C. J. Section 744. Not presenting an application in Court though engaged for the purpose stands on the same footing as not appearing in the case and is governed by the same principles.
38. The advocate has failed to prove the special arrangement but even if there was, he has rendered himself guilty of professional misconduct by not warning the complainant that this Court requires a petition for a writ to be filed within 90 days of the impugned order and that if he did not pay the balance well in time to enable him to move the petition before the expiry of the period he would not be responsible for the delay. Not only did he not warn the complainant as was his professional duty but also he never reminded him that on account of his not paying the balance the filing of the petition in the Court was being held up and was being delayed.
I am not prepared to accept his bare statement! that he had told his clerk to remind the complainant. The law may allow a duty imposed upon one person to be performed by his agent or servant but it does not allow a person to shift his responsibility to another person. If the clerk had warned the complainant and reminded him to pay the balance it would have amounted to the advocate's doing so, but the advocate cannot be heard to say that he asked his clerk to perform his duty and is not responsible if the clerk failed to perform it. If the clerk failed to perform it, he remains responsible; it is wholly immaterial that he had asked him to perform it.
39. It is nobody's case that the filing of the petition with so much delay after the expiry of the period allowed by this Court was an act of mera negligence on the part of the advocate, The advocate himself never pleaded that it was a case of negligence; his whole case is that he deliberately refrained from filing it because of the special arrangement with the complainant. It has been observed in a number of cases that negligence does not by itself amount to professional misconduct; for example see In re A Vakil, ILR 49 Mad 523: (AIR 1926 Mad 568) (FB), and : AIR1935Cal484 , which approves of it.
In the former case there was nothing but negligence; it was really negligence of the clerk of the vakil but he accepted his responsibility for it. Because there was a lack of an 'element of moral delinquency' negligence was held not to amount to professional misconduct. In the Calcutta case the negligence of the advocate was said to be accompanied by an element of moral delinquency. Costello J., observed at p. 165 (of ILR Cal): (at p. 487 of AIR):
'If a professional man does not tell the truth in connection with a matter which he had undertaken to carry through on behalf of a client; that is conduct which might easily be said to involve moral delinquency',
and relied upon an English case in which it was observed that:
'barristers were subject to the jurisdiction ofthe Benchers if their conduct was unbecoming theprofession and unbecoming gentlemen.'
Henderson J., agreeing said at p. 168:
'I am clearly of opinion that negligence accompanied by the suppression of the truth or by deliberate mis-representation would be misconduct,'
In Muni Reddi's case, ILR 37 Mad 238: (AIR 1914 Mad 512), Sankaran Nair J., rejected the contention that a pleader who is wilfully and grossly negligent in the discharge of his duties cannot be punished for his misconduct and observed that;
'negligence may also be so gross and amount to such a violation of the duties of a pleader as an officer of the Court and to the litigant and as a member of a responsible and honourable profession as to require that the Court should punish him in the exercise of its powers over its officers', and pointed out at p. 251 (of ILR Mad): (at p. 517 of AIR) that in America neglect of duty as an attorney is a good ground for suspension or disbarment. The advocate here has given false excuses before the Tribunal and that itself amounts to moral delinquency.
40. The advocate has tried to shift all the blame to his clerk. It may be true that he is not vicariously liable for all his clerk's acts and that for some of them he may be amenable to the jurisdiction of a civil Court and not to the disciplinary jurisdiction of this Court, but he cannot disown responsibility for a duty which lay upon his shoulders and which his clerk in spite of his directions failed to perform, aS I pointed out earlier, he remains liable for all his duties to the complainant which were not performed by his clerk.
In Shahadat v. Hukam Singh, 71 Ind Cas 730: (AIR 1924 Lah 401). Scott-Smith J., said that a 'lawyer cannot shelter himself behind his! clerk, and if his clerk has been guilty of any carelessness, he is responsible for that'. In the matter of Krishnaswami Aiyar, ILR 35 Mad 543 at p. 553 (PC), the Privy Council found the vakil 'guilty of the regrettable conduct of permitting a staff who had previously been guilty of such deception, to continue in correspondence with his client' and refused to acquit him of his 'conduct in the management of the appeal and of his client's affairs which caused the procedure of the Court to be the very opposite of what all such procedure should be, namely, first responsible, secondly, orderly, and thirdly pure'. In Firm J.E. Billimoria and Sons v. Gopinath AIR 1938 Nag 370 at p. 373, Vivian Bose J., pointed out that:
'there is a duty cast upon members of a monopolist profession to exercise care and due diligence in the persons whom they employ and if they choose to employ a person known by them to be irresponsible, without taking adequate steps to keep a close personal check upon his actions, then they are themselves at fault, and will become liable to be called to account.'
The Privy Council case was an appeal from In re Krishnaswami Aiyar, 22 Mad LJ 276, the facts in which are very much similar to the facts in the present case. There letters were written by a vakil's clerk which contained false information. The Court dealt with the matter at pp. 283-284 as follows:
'The vakil tells us, in effect, that these letters were written without his knowledge or approval. It was suggested that there was nothing unusual in this. If a practice of vakil's clerk being allowed to write letters on behalf of their masters without their masters' knowledge really exists, it seems to us that the practice is altogether unbusiness-like. The letter of January 28th, 1910, contains a false statement -- a false statement is, it seems to us --made deliberately with a definite object in view. The vakil cannot protect himself from responsibility by saying that he knew nothing about this letter. We must hold him responsible for it........
There remains the fact that when the appeal was dismissed for default in circumstances which made it the duty of the vakil to offer a prompt and full explanation to the Court and to his client, he did nothing till his client appeared on the scene. He did not write to the client himself. He gave no instructions to his clerk to write. The matter was one of special delicacy and importance, and, in our opinion, it was the duty of the vakil either to give express instructions to his clerk in the matter or to satisfy himself that' any communication which his clerk sent to the client was a true statement.'
The Special Bench suspended the vakil from practice for six months and the order was upheld by the Privy Council. In Emperor v. Harbans Lal AIR 1936 Lah 1013, a lawyer's clerk gave false information to the client, though he stated that he did so under the lawyer's instructions he admitted that he did not show the letter to him after writing it and on the material before the learned Judges they found themselves unable to accept his bare testimony about the lawyer's instructions.
41. I find it difficult to to accept the plea of the advocate that he was ignorant of what was happening in his office. There is nothing to indicate that his clerks became dishonest and unreliable all of a sudden with his acceptance of the complainant's brief; there was no reason for them to become dishonest suddenly in the complainant's matter. There is the definite statement of the clerk that it was his practice to write such letters in reply to anxious inquiries of clients about the fate of their cases; if so, the advocate could not have been ignorant of the practice.
The practice was not formed by his clerks to serve any interest of their own; it must have been formed in his interest and consequently with his consent if not actually at his direction. In any case it must have been formed with his knowledge or connivance. Even if he were really ignorant of the practice, he would be still guilty of misconduct of following a course of conduct which would keep him ignorant of the malpractices of hid clerks. If he did not exercise any supervision or check over them, if he left to them everything barring the work to be done in Court, if he did not care to see how they maintained the briefs and the records or registers, what letters they received from clients and how they were disposed of, what replies were given to them, whether, clients' letters were preserved for a sufficient time or not, whether some record was kept of the contents of the replies given to them, whether, they gave receipts to clients for monies received from them, whether they gave them memos of expenses and in short, whether they at all carried out his instructions or not, it can hardly be doubted that he is guilty of gross misconduct in the performance of his professional duties.
No notice might have been taken of any lack of supervision over the work of his domestic servants in respect of his private matters but his responsibility as an officer of the Court was different and the matter was not entirely between himself and his clerks. He owed a duty to the Court and a duty to his clients , and must be held to have failed to. perform them if he, exercised no supervision and check over the work of his clerks in their dealings with his clients. A good deal was said in the course of arguments about the practice followed by the advocates of this Court, but a dishonourable practice does, not become honourable by prescription.
The Tribunal has dismissed the letters written by the clerks as something for which the advocate was not responsible. He would certainly be liable For every letter that he himself writes, but if instead of writing it himself he directs his clerk to write something in the letter and leaves it entirely to him to write whatever he likes by not reading it before its despatch and by not insisting upon his maintaining a true copy of the letter before despatching it, I do not see any reason why he should not be made as much answerable for what the clerk writes as if he himself had written it. He should not be allowed to approbate and reprobate.
When it comes to performing his duty of writing to the complainant, he relies upon the direction given by him to the clerks to write to him and upon the letters written by them, but he disowns responsibility for the contents of the letters. He certainly should not be allowed to say, 'Head I win, tail you lose'.
42. The advocate has been found guilty of the following acts and omissions. He neither issued a receipt to the complainant for the money received from him nor maintained a proper record of it. He did not warn the complainant that the petition must be moved before the expiry of 90 days and if any act was required to be done by him before the petition was to be moved, he did not warn him to do it well in time. Payment of any more money was not a condition precedent to the filing of the petition, yet he designedly delayed the filing before it became too late.
If any balance of the fee was due from the complainant, he never reminded him to pay it and never warned him of the consequences of not paying it. He engaged clerks who were in the habit of giving false information to clients and deceiving them and did not exercise any supervision over them and their work. He never informed the complainant that the petition was not moved and that it would not be moved unless some act was done by him; instead he through the letters written by his clerks suggested to him that it had been moved though it had not come up before the Court for admission.
Though he intended on 22-11-1956 to file the petition on 25-11-1956, he neither filed it nor called upon the complainant to do the act which might have been necessary to be done. He again decided on 19-4-1957 to move the petition but did not call upon the complainant to do the act before 8-5-1957. On 8-5-1957 he did not inform the Court that the delay was due to the non-payment of the balance of his fee in spite of an agreement and took are adjournment to file an affidavit. He called the complainant unnecessarily to Allahabad and without telling him what affidavit was required and whether any act was required to be done by him or not. He did not tell him on 14-5-1957 that the petition had been filed on 8-5-1957 and that an affidavit in respect of the delay was required from him and did not get an affidavit sworn by him and instead of getting an affidavit prepared and sworn by him there and then, sent him back to Rampur with the promise, that was not intended to be carried out, of sending the affidavit to him at Rampur.
He did not obtain the information from thecomplainant necessary for the preparation of an affidavit and if he at all intended an affidavit to beprepared, he intended it to contain imaginary facts.He did not send any affidavit to the complainant and if he sent it, he did not remind him to return it before the date fixed for the hearing of thepetition. He did not inform the complainant ofthe reason for the dismissal of the petition andleft him under the impression that it was dismissed on merits and not on the ground of unexplained delay.
He did not take prompt action to obtain a certified copy of the Court's judgment and did not take any action against the clerk even on finding that he had delayed the matter. His defence before the Tribunal was against the facts and ha disowned all responsibility for the letters written by his clerks. These acts make out a clear case of professional misconduct.
43. I would adjudge the advocate guilty of professional misconduct. I am not satisfied that he acted with any dishonest intention or with any oblique motive and I do not consider that this is a case in which a serious view of the misconduct committed by him should be taken. I agree with the Hon'ble the Chief Justice that an admonition to him would serve the requirements of justice.
44. This matter arose out of a complaint made by one Ali Mohammad Kashmiri against an advocate practising in this Court. The complaint was sent to the Bar Council under Section 10(2) of the Bar Councils Act for their report and findings. The Bar Councils Tribunal recorded its findings on 30-4-1959, and these findings have now been laid before this Bench for orders under Section 12(4) of the Bar Councils Act.
45. The facts of the case briefly stated were these:
46. Ali Mohammad Kashmiri, who will hereafter be referred to in this judgment as the complainant, came and engaged an Advocate of this Court, who shall hereafter be referred to as the Advocate, on 4-7-1956, for the purpose of moving a petition under Article 226 of the Constitution. The complainant was an employee of the Central Excise and had been posted at Rampur. His services were terminated after giving him one month's notice with effect from 2-6-1956. The complainant wished to challenge this termination of his services and therefore he came to Allahabad to seek his remedy from this Court and in connection therewith he contacted the Advocate on 4-7-1956.
The complainant's version was that he came to this particular Advocate because he had a letter of introduction for him from a common friend. This allegation of the complainant, however, has not been admitted by the Advocate. Be that as it may, the fact that the complainant contacted the Advocate for professional engagement On 4-7-1956, stands admitted.
47. According to the complainant there wasno specific settlement of fees. What according tothe complainant agreed upon was that he- would paythe expenses as would be necessary from time totime. The complainant, in pursuance of this saysthat he paid a sum of Rs. 220/- between the 4thof July, and the 13th July, 1956 to the Advocate.It is conceded by the complainant that he neitherreceived any memorandum of expenses nor any receipt for the payment that he made. On 13-7-1956,an affidavit was sworn by the complainant late inthe evening at 6-30 and the complainant left Allahabad the same evening.
It is not clear from the record as to when actually the writ petition, which was filed in Court, was drawn up by Advocate, but what does appear is that the petition bears the date 22-11-1956, presumably to show that it was drawn up. on that date or signed by the Advocate on that date. The court-fee stamps affixed to the petition and the Vakalatnama were purchased on 19-4-1957, and the petition was actually moved in Court on 8-5-1957. On that date the Court granted time for filing a supplementary affidavit in order to explain the inordinate delay that had been made . in challenging the order of removal of the complainant from service.
Time for filing a supplementary affidavit was granted up to 20-7-1957. The petition came up for orders again before the Court on 22-8-1957, on which date it was dismissed primarily, it appears, on the ground that the petition was belated one and that no affidavit had been filed, even though time had been granted for it, explaining the delay.
48. From what has been stated earlier, it is plain that time had been granted to file a supplementary affidavit and that a supplementary affidavit was not filed. In this connection it is necessary to know a few more facts. A communication was sent to the complainant apprising him of the fact that a supplementary affidavit was necessary. It appears that the complainant came to Allahabad on 14-7-1957, presumably with the avowed object of taking steps to have a supplementary affidavit made out and put into Court. Nevertheless the complainant went back without having a supplementary affidavit made out and sworn.
The complainant explained this conduct of his in coming to Allahabad in response to a call from the Advocate's office for filing a supplementary affidavit and going back without having one made out and filed by saying that the Advocate did not tell him as to why a supplementary affidavit had been needed and further that he was asked to go away on the assurance that the necessary affidavit would be got ready and sent to him. The complainant's case was that he never received any supplementary affidavit as had been promised.
49. The complainant was informed of the result of the petition and thereafter he obtained a certified copy of the judgment of this Court by making an .application for a copy on 13-1-1958. The complainant stated that after, he had read the judgment he Came to know for the first time that his petition had been dismissed on the ground of its having been moved much beyond time.
50. On 3-2-1958, the complainant made an application to the Chief Justice stating the circumstances in which he had engaged the Advocate, the purpose for which such engagement had been made and the result thereof. His complaint to the Chief Justice in effect was that his writ petition had been dismissed by this Court because of deliberate delay made by the Advocate in submitting the petition to Court. He alleged that he had been kept all along under the impression that his petition had been moved soon after he had left Allahabad on 13-7-1956.
In this application the complainant charged the Advocate with dishonesty. An explanation was asked for from the Advocate who controverted the allegation of the complainant to the effect that there had been no settlement of fees. The Advocate asserted that there was a settlement of fees at a sum of Rs. 330/- -- Rs. 300/- towards the Advocate's fee and Rs. 30/- as clerk's: fees. It was further asserted by the Advocate that it was agreed that the petition would be filed after the complainant had paid in the necessary expenses plus half of the settled fee of the Advocate and the clerk. The complainant, according to the Advocate, paid only Rs. 100/- and he had yet to pay a balance of Rs. 95 before he could legitimately ask the Advocate to file the petition.
51. The Advocate denied that the letters which the complainant got from his office were issued under his instructions. The Advocate pleaded ignorance of their contents and abjured all responsibility for them.
52. In regard to the visit of the complainant to Allahabad a second time, that is to say, on 14-5-1957, ostensibly, for the purpose of having a supplementary affidavit prepared, it was stated by the Advocate that he was then preparing to leave for Iraq but nevertheless he had told the complainant that a supplementary affidavit was necessary in order to explain the delay and that the requisite affidavit would be drafted and sent to him by some junior of his in his absence.
It is also the case of the Advocate that when the complainant saw him on 14-5-1957, even then he had told the complainant in regard to the balance of the money that was due from him. The Advocate remained out of India till the beginning of July 1957 and he therefore said that he was not aware of any letters that were received in his office from the complainant during that period.
On 22-8-1957, when the case had been listed and when the case was actually disposed of, the Advocate says that he had been assured by his clerk that a supplementary affidavit had been sent to the complainant for verification and return but the same had not been received back from the complainant. The Advocate made an attempt to obtain further time from the Court for filing a supplementary affidavit but the Court refused to grant him any further time.
53. After the explanation of the Advocate had been submitted the complaint of AH Mohammad Kashmiri was sent to the Bar Council by the High Court for investigation and report.
54. The Bar Council Tribunal investigated into the matter and has submitted its findings by which it has exonerated the Advocate. The Bar Council arrived at the following findings:
1. that there was a settlement of fees and expenses totalling Rs. 360/- and out of this sum it was settled that Rs. 195/- had to be paid at the time of the filing of the writ petition.
2. that the complainant only paid Rs. 100/-and promised to remit the balance of Rs. 95/- from Rampur.
3. That the writ petition was to be moved only after half the amount due had been paid.
4. That the complainant did not remit the balance of Rs. 95/- as promised by him.
5. That the Advocate did inform the complainant on the 14th May, 1957, that a supplementary affidavit was necessary in order to explain the delay in filing the writ petition.
6. That the Advocate was not responsible for the letters which his clerk had written to the complainant, particularly Exs. 5 to 9, since they had been written without his knowledge or instructions.
55. A notice was issued to the Advocate-General, the Bar Council, the Advocate and the complainant from this Court, on receipt of the findings of the Bar Council Tribunal in pursuance of ths provisions of Section 12(3) of the Bar Councils Act. The learned Advocate-Ceneral did not challenge any of the findings of the Bar Council Tribunal. The complainant, through his counsel, Mr. H. N. Seth, however, challenged those findings. No written objections, however, were filed on behalf of the complainant.
56. On the contentions of learned counsel for the complainant the questions which fell for our determination were again, more or less, the same as were determined by the Bar Council Tribunal. Before the Bar Council Tribunal evidence had been given by the complainant, the Advocate and the clerk of the Advocate. Certain letters were also produced by the complainant.
57. The first question that has to be determined by us is whether or not the Bar Council Tribunal was right in coming to the conclusion that there was a settlement of fees and expenses totalling Rs. 660/- and that, further, there was a settlement that the petition was to be moved only after half of the settled amount had been paid. On this question there was oral evidence of the Advocate, his clerk and the complainant. There was no receipt or acknowledgment produced on behalf of the complainant which could throw any light on the matter. On behalf of the Advocate a true copy of an extract from his register was produced to show that the complainant paid only a sum of Rs. 100/- at the time when he first came to engage the Advocate in July 1956.
It may here be stated that it was admitted at both hands that apart from any payment that had been made in July 1956 no further payment had been made by the complainant. On behalf of the Advocate the cover of the brief of the complainant's; case was produced to support his contention as to the actual payments which the complainant had to make and the balance that he had to remit. The case of the complainant, as has already been noticed, was that there was no settlement of fees but what was agreed was that whatever expenses would be necessary would only be paid,
It has to be conceded that the allegations of the complainant in regard to his engagement of the Advocate on the terms on which he says he engaged him were not the usual terms on which Advocates undertake to do professional work for clients. It is almost an invariable practice of the Bar that there is a clear settlement of the terms on which the engagement is made.
58. On behalf of the complainant great reliance was placed on the letters which emanated from the office of the Advocate under the signature of his clerk. It was pointed out that a reading of these letters clearly indicated that the petition had actually been put in Court soon after the complainant had left in July 1956. Further it was pointed out that in none of the letters which were filed on the record any reference had been made to any balance of fees outstanding.
It is no doubt true that the correspondence which emanated from the Advocate's office and which is on the record, does indicate that the position which had been taken in those letters was that the writ petition only awaited the orders of the Court and not that the petition had not been put into Court. An attempt was made by learned counsel appearing for the Advocate to show that the correspondence exhibited did not necessarily lead to the conclusion which the complainant wanted to be reached,
It is not easy to accept this contention of learned counsel but what may be said, however, is that even though the letters created the impression that the complainant's petition had been filed and even though there was no kind of demand for the balance of fees in the letters, these two facts did not necessarily lead to the inference that there was any deliberate misrepresentation of the true position at the instance of the Advocate. What the clerk's motives may have been in writing such letters is not easy to discover. The clerk, when he was in the witness-box, attempted to explain the meaning of the language used by him in some of the letters by saying that he intended to convey thereby the information to the complainant that his writ petition had not been filed by then. In this attempt, however, the clerk cannot be said to have succeeded very well.
Reference was made particularly to Ex. 9 to show that a letter of this kind would not have been sent if there had been any fees outstanding. Exhibit 9 makes a reference to the fact that the Advocate had seen all the papers of the complainant and had prepared notes for argument, that the petition was to be moved in the next week and that after arguments had been made information of the result would be sent to the complainant. The clerk, when faced with this letter, said that this letter was in reply to a letter which had been received from the complainant. The letter of the complainant, however, had not been exhibited in the) case.
The explanation of the clerk cannot but be held to be uasatisfactory. The responsibility for what was contained in these letters could be fastened squarely on the Advocate if there was any indication that he had any knowledge of the contents or that these letters emanated from his office under his instructions. An Advocate cannot generally shirk responsibility for what his clerk writes to clients, for if that were so, a good deal of professional impropriety would creep into the profession. In the instant case, however, it is not possible to fasten the responsibility on the Advocate, particularly when the Advocate definitely says that no letters in question were issued from his office, either on his instructions or to his knowledge.
It becomes necessary to see whether what the Advocate says is true or false. If a letter issued from the office of an advocate, even though it may not have been issued under his direct instructions in regard to its contents, had the effect of somehow benefiting the Advocate, then it could be possible to raise a presumption that such a letter was inspired in some way by the Advocate but when the letter had not that effect but had a contrary effect then it would neither be fair nor just to presume the Advocate's instructions or direction in regard to such a letter.
It is, therefore, not possible to place reliance on the letters exhibited in this case for disbelieving the positive assertion on oath of the Advocate that fees were outstanding and that the writ petition was to be filed only when the outstanding fees had been paid.
59. There are some circumstances appearing in the evidence which point unmistakably to THe con-(sic)sion that whatever else may have been the truth (sic) not true that the agreement between the complainant and the Advocate was what the complainant said it was; further, it was also clear that the filing of the writ petition was deferred for some reason. The circumstances which unmistakably point to the above end were: the departure of the complainant on 13-7-1956, even though the affidavit in support of the writ petition had been drawn up and verified before an Oath Commissioner. The complainant stated that he was anxious to see the writ filed in his presence, yet there is no satisfactory reason given by him for leaving Allahabad without seeing his writ petition filed.
The complainant says he was sent away by the Advocate. The question naturally arises why should the Advocate have done so, for on the complainant's case the agreed fees and costs had been paid: the affidavit had been drawn up and verified. There was, therefore, very little more to be done by the Advocate. The real time and energy consuming acts, so far as the Advocate was concerned, had already been done. In this setting the explanation of the Advocate that the writ petition was not moved because the agreed fee had not been paid does not appear to be ill founded.
60. On behalf of the complainant stress was laid on the circumstance of the Advocate having actually moved the writ petition on 8-5-1957, even though, on the Advocate's showing the balance of fees due had not been paid. The explanation given by the Advocate was that he moved the petition then because he was about to leave for Iraq. This act of the Advocate was by way of abundant caution, for in case the client had sent the balance of fees when the Advocate was away then there would have been occasion for some embarrassment.
The fact that the Advocate filed the writ petition on 8-5-1957, cannot therefore be taken as a circumstance which could in any manner assist the complainant in showing that the Advocate had agreed to file the writ petition without there being any agreement in regard to fees.
61. A good deal of stress was laid on the absence of any proper record of the correspondence by the Advocate and there being no proper accounts, One has to concede that neither the method, if there was any, of keeping a record of the correspondence between the Advocate and his clients, nor the method of keeping accounts was satisfactory Or very proper. Neither of the aforementioned improprieties, however, can be justly utilised for corroborating the complainant's version. The improprieties have taken their due toll in so far as they provided opportunity to the complainant to have proceedings initiated against the Advocate.
62. The last circumstance on which reliance was placed was the circumstance of the complainant coming to Allahabad on receipt of a letter from the clerk of the Advocate dated 10-5-1959, (Ex. 10) to file a supplementary affidavit and yet his not having an affidavit prepared and going back to Ram-pur post haste. The complainant's version about this aspect of the matter was that he was asked to go away since the Advocate was very busy with his preparations for going to Iraq and that he was told that a draft of the affidavit would be sent to him for verification to Rampur later.
The complainant further said that he was not told the reason why a supplementary affidavit was necessary. The version of the Advocate was that he had told the complainant the reason why the supplementary affidavit was needed: further he had been told that the delay had been occasioned because of the complainant's own neglect in not sending the balance of Rs. 95/- due from him. It was argued by Mr, Seth for the complainant that the reason why the complainant was sent away was that the Advocate did not wish to disclose to the complainant the reason why the supplementary affidavit was required.
This argument was not sound for any attempt to keep the complainant in the dark about the reason Why a supplementary affidavit was required was bound to fail for the obvious reason that the complainant was bound to know the reason when he read the affidavit: the complainant was an educated person and knew English and therefore could read . and understand the contents of the supplementary affidavit. The only reasonable hypothesis on which the return journey of the complainant without completing his mission could be explained was that he had even on the second visit not paid off the balance due and as such the Advocate did not feel interested in drawing up a supplementary affidavit at that time.
63. The Bar Council Tribunal found the story of the complainant that he had paid the Advocate a sum of Rs. 220/- untrue. On the circumstances of the case it is difficult to arrive at any other conclusion. The complainant, on his own showing, paid this amount not in a lump sum but in, what may be called, driblets. On his own showing again, he was not in any affluent circumstances and the sum of Rs. 220/- was a large amount.
64. The Bar Council Tribunal considered the evidence that was led before it by the complainant as also the Advocate. It also considered all the circumstances which required consideration. In the Matter of an Advocate of Ranikhet : AIR1940All1 , a Full Bench of this Court ruled that the High Court should ordinarily accept findings of fact recorded by the Bar Council Tribunal unless the findings are found to bo perverse. The Bar Council Tribunal is a body of professionally trained men and their findings are entitled to great weight, particularly when on an independent scrutiny of the evidence and the materials on record the findings could not be said to be in any sense unjustified. The findings must therefore be accepted and on those findings it must be held that the Advocate was not guilty of any professional misconduct and that the complaint made against the Advocate should be dismissed.
65. The only other question that remains to to be determined is the question of costs. Under Sub-section (5) of Section 12 of the Bar Councils Act this Court has the power to make orders in regard to the payment of costs of the enquiry and the hearing in the High Court. In the normal course, on the failure of a complaint, an advocate should be entitled to receive his costs of the enquiry and the hearing before the High Court. In his case, however, the Advocate could not lay claim to such costs because, 'as has been noticed earlier, the method of maintaining copies of the correspondenceor record of correspondence of his office was notsatisfactory: further, it has been noticed that themethod of keeping accounts by the clerk of theAdvocate concerned was far from being satisfactory.
Some of the letters that emanated from the office of the Advocate did create the impression that the clerk who wrote them wanted to convey the impression to the complainant that the writ petition had actually been filed in Court and only awaited the Court's final order. In these circumstances it would not be unjust to direct the parties to bear their own costs both of the enquiry before the Bar Council Tribunal and costs incurred before the High Court.
By The Court
66. The Court finds the Advocate guilty of professional misconduct, and directs that he be admonished,