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L. Dakshinamoorthy, Advocate Vs. Bar Council of Tamil Nadu Represented by Its Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1999)1MLJ188
AppellantL. Dakshinamoorthy, Advocate
RespondentBar Council of Tamil Nadu Represented by Its Secretary and ors.
Cases ReferredDr. Partap Singh and Anr. v. Director of Enforcement
Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. .....conduct and etiquette of advocates is to receive complaints against advocates and the bar council has reason to believe that any advocate has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. the bar council of a state may also of its own motion, if it has reason to believe that any advocate has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. it is apparent that a state bar council hot only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. the bar council of a state acts on that reasoned belief. the bar council has a.....
Judgment:
ORDER

S.S. Subramani, J.

1. This revision is filed under Article 227 of the Constitution of India against the notice issued by 1st respondent-Bar Council of Tamil Nadu, to the petitioner under Rule 5 in Chapter 1, Part VII read with Section 35/36 of Advocates Act, 1961.

2. Relevant facts which resulted in issuance of the said notice may be summarised thus:

Late S.S.M. Mari Chettiar had six sons, and there was an inter se dispute between them., They even thought of initiating legal proceedings by going to Court. At that time, some well-wishers of the family suggested that it is a matter which has to be settled out of court, and advocate Mr. Sarangan, Bangalore was appointed as Arbitrator. Petitioner herein, who is also an advocate, was closely connected with the family, both in view of his relationship and also in view of his appointment as Legal Advisor in various Companies run by the family. Petitioner, in view of his intimate connection with the family (not as an advocate) was also asked to co-ordinate with the Arbitrator. It is said that at the instance of the Arbitrator, a settlement deed was executed containing 17 pages with 26 clauses, and the same was prepared on 14.7.1993. The document was signed by some of the parties and the same was entrusted to the petitioner for getting the signatures of the rival group. In the complaint, it is said that for nearly two years, petitioner did not get the signatures, and in the meanwhile, one of the beneficiaries under the deed also died. Later, when repeated requests were made, petitioner seems to have represented that the last page was missing and, therefore, he could not get the signature from the rival group. Subsequently, he added two more clauses to the deed and incorporating a photo copy of the original of the 17th page, and after getting the signatures of the concerned, returned the paper to the complainant. This is the sum and substance of the complaint filed by their third respondent before the Bar Council. In the complaint, it is said that as a co-ordinator, he has no authority to add two more clauses without the consent of the Arbitrator and the other members of the family. It is also said that the non-return of the document intact is not proper and, therefore, proceedings will have to be initiated against him.

3. As against the said contention, petitioner stated that he became a co-ordinator along with the Arbitrator not as a counsel of anyone, and there was no advocate client relationship in dealing with the matter of the family. According to him, when the matter was settled on the basis of family arrangement on the basis of a deed dated 14.7.1993, he was entrusted with the document by other members of the family only as their agent to get the signature from the other group. Getting signatures of persons belonging to the other group cannot be the function of a counsel. He also explained the circumstances under which the last page of the deed was lost, and the circumstances under which the two clauses had to be added to the settlement deed. He further said that those two clauses were added with authority from the Arbitrator, and there cannot be any question of professional misconduct in such cases.

4. In the impugned notice, the Bar Council, after extracting the facts, passed a resolution which reads thus:

After careful consideration of the complaint and the comments, the Bar Council of Tamil Nadu concludes that the complainant has established a prima facie case of misconduct against the respondent and it has therefore referred the complaint to the Disciplinary Committee for disposal.

This notice is challenged by revision petitioner on various grounds, the main ground being that the first respondent-Bar Council has not applied their mind before issuing the notice, There must be an application of mind to hold or reason to believe that the advocate is guilty of professional misconduct, and that is lacking in this case.

5. I heard learned senior counsel for petitioner and also learned Counsel for complainant (3rd respondent herein) and also learned Standing Counsel for respondents 1 and 2.

6. In Bar Council, Maharashtra v. M.V. Dabholkar : [1976]1SCR306 , their Lordships of the Honourable Supreme Court, in paragraph 23, considered the scope of the Advocate Act, and what is the duty of the Bar Council. It reads thus:

The scheme and the provisions of the Act indicate that the Constitution of State Bar Councils and Bar Council of India is for one of the principal purposes to see that the standards of professional conduct and etiquette laid down by the Bar Council of India are observed and preserved. The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are to safeguard the rights, privileges and interests of advocates. The Bar Council is a body corporate. The disciplinary committees are constituted by the Bar Council; The Bar Council is not the same body as its disciplinary committee. One of the principal functions of the Bar Council in regard to standards of professional conduct and etiquette of advocates is to receive complaints against advocates and the Bar Council has reason to believe that any advocate has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. The Bar Council of a State may also of its own motion, if it has reason to believe that any advocate has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. It is apparent that a State Bar Council Hot only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. The Bar Council of a State acts on that reasoned belief. The Bar Council has a very important part to play first, in the reception of complaints, second, informing reasonable belief of guilt of professional or other misconduct, and finally in making reference of the case to its disciplinary committee. The initiation of the proceedings before the disciplinary committee is by the Bar Council of a State. A most significant feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings.

[Italics supplied]

The aforesaid decision came for consideration in Nandlal Khodidas Barot v. Bar Council of Gujarat and Ors. : AIR1981SC477 . There also, their Lordships reiterated the principle that mere must be application of mind and a prima facie case must be found out that there was professional or other misconduct, and then only it can refer the matter to the Disciplinary Committee. The reason is very apparent, namely, that a frivolous complaint against the advocate should not be entertained, and there must be check on entertaining such applications. An Advocate who is an Officer of Court as well as a Trustee for the client has to act with dignity, and in discharging his duties, he should not be harassed by filing frivolous applications. That is why the Bar Council of the State is given the responsibility of censoring the applications and only if it finds that there is 'reason to believe' that there was professional or other misconduct, it can send the complaint to the Disciplinary Committee. Mere repetition of the word that mere is a prima facie case and there are grounds to proceed with the disciplinary action by itself is not sufficient to come to the conclusion that there is a proper application of mind. It is true that my jurisdiction under Article 227 of the Constitution of India is also limited. But when a matter is referred to a Disciplinary Committee, it is the reputation of the Counsel that is at stake. Even if ultimately the Disciplinary Committee exonerates him from the accusation, still there will be a stigma which will effect his profession.

7. In U. Dakshinamoorthy v. The Commission of Inquiry Presided over by the Hon'ble Mr. Justice C.R.J. Paul, etc. : (1980)1MLJ121 , a Full Bench of our Court considered as to what is meant by 'misconduct'. The Full Bench said that, 'whether it is professional misconduct or misconduct otherwise has to be judged by the Bar Council which has to be satisfied about the commission of such misconduct, as technically understood under the Advocates Act'. The Full Bench further said that, 'every misconduct may not be professional misconduct or other misconduct contemplated by Section 35: It is better to extract paragraphs 20 to 29 of the judgment, for our purpose. They read as follows:

As 'misconduct' has not been defined, we have to be guided by the meaning which is obtainable for the expression in ordinary and common parlance. 'Misconduct', as explained in the dictionary, is improper conduct. The propriety of the conduct of the Advocate is to be inquired into by the Commission. Whether it is professional misconduct or misconduct otherwise has to* be judged by the Bar Council which has to be satisfied about the commission of such misconduct, as technically understood under the Advocates Act. Every misconduct may not be professional misconduct or other misconduct contemplated by Section 35.

Before the passing of the Advocates Act, Section 10 of the Bar Councils Act (1926) conferred on the court disciplinary jurisdiction to take action in cases of misconduct, whether in a professional or other capacity, leaving it to the Court to take action only in suitable cases. Vide - In the matter of D, an Advocate of the Supreme Court : AIR1986Cal158 . A Special Bench of the Calcutta High Court in the matter of D, an Advocate reiterated the position that the test to be applied in considering the question whether an Advocate should be struck off the roll of Advocates is whether the proved misconduct of the Advocates is such that he must be regarded as 'unworthy to be a member of the honourable profession to which he has been admitted and unfit to be entrusted with the responsible duties that an Advocate is called upon to perform.'

To a similar effect are the observations of the Supreme Court in Ratnam v. Kanikaram A.I.R. 1965 S.C. 244. The Supreme Court has observed that proceedings under the quondam Bar Councils Act are taken in order to ensure that the highest standards of professional conduct are maintained at the bar and that these proceedings though in a sense penal, are solely designed 'for the purpose of maintaining discipline and to ensure that a person does not continue to practise who by his conduct has shown that he is unfit so to do,'

From the resume of the understanding of the term 'professional or other misconduct', as it appeared in the Bar Councils Act, or, as it is found in the Advocates Act, it appears that the term 'misconduct' appearing in the respective sections has to be examined, with the lens of propriety, decency and worthy living and the fitness of the person to be on the rolls as an Advocate. It therefore appears that an accent is laid at every stage by the highest Court of our land on the fitness of the person to continue on the rolls, which has to be decided with reference to his conduct in general or with reference to his conduct touching upon a particular incident.

It is true that while issuing the notice, the Bar Council is not entering a finding as to misconduct. But it has to satisfy itself that there is a prima facie case of misconduct as an advocate. It is here, I feel that the first respondent has miserably failed. Even according to the complaint, the petitioner was never engaged as a counsel by any one. The Arbitrator was an utter stranger to the family, but who was interested in the welfare of the family. He was a counsel from Bangalore. It was he who prepared the family settlement deed. Even according the complaint, the petitioner is only a co-ordinator which means that the petitioner was asked to work together as a person knowing the details of the family. The Arbitrator is also a person who knows about in and outs of the family, and along with him the petitioner herein is appointed as a coordinator i.e., to work with him to effect a settlement. It is admitted by both sides that a settlement was also arrived at, and some of the parties also signed the document. Thereafter, the petitioner was entrusted with the task of getting the signatures of some pf the persons. The entrustment to him was not as a counsel by any one, but only as a coordinator. There also, he has not discharged his work as counsel of anyone. There was some delay in getting the signatures and the petitioner has got his own explanation for the same. I am not concerned whether it is valid or acceptable, since the only question before me is whether, on the basis of the complaint, the Bar Council can come to the conclusion that there was misconduct.

8. The further allegation is that the entire document was not returned, and the last page 'Was found missing and the same was substituted by a xerox copy and two more clauses were added. Even according to the complaint, these two more clauses were added without their authority. It must be stated that the petitioner was not a mediator. He only helped the arbitrator, and it is his case that the Arbitrator also agreed to have those clause included. If this is the scope of the complaint, what is the misconduct which enables the Bar Council to take action against the petitioner. When the relationship between the parties is not that of advocate and client, and the petitioner was entrusted with the task of only coordinating with the arbitrator as a person closely known to the family, there is no scope for alleging any misconduct as against him. He is not playing any role as an advocate nor could there be any scope for an enquiry regarding any misconduct. It must also be understood that the definite case of the petitioner is that he had been a coordinator and an agent, and he has-not received any consideration or fees. This he has already stated in the registered reply notice issued to the complainant. In para 15 of the reply notice sent to the complainant on 21.11.1995 petitioner has specifically stated that he has acted purely as a co-ordinator and he never received any amount for the said purpose as an advocate, and that he is yet to be reimbursed for the expenses which he himself has incurred for the parties.

9. 'Reason to believe' means a belief which a reasonable man will entertain on the facts before him, and it contemplates an objective based on independent care and deliberation and the same must be based on good faith, and it cannot be merely on the basis of a pretence. It further means, facts which prima facie will convince the court with that a reasonable man could under the circumstances believe, which will impel him to take action under law.

10. I need only take into consideration the decision reported in Ganga Saran & Sons (P) Ltd., Calcutta v. I.T. Officer, Maharashtra : [1981]129ITR404(SC) , where their Lordships interpreted the word 'reason to believe'. In that judgment, it was held thus:.The important words under Section 147(a) are 'has reason to believe' and these words are stronger than the words 'is satisfied'. The belief entertained by the Income-tax Officer must not be arbitrary or irrational. It must be reasonable or in other words it must be based on reasons which are relevant and material....

Their Lordships further went on and said thus:.If there is no rational and intelligible nexus between the reasons and the belief, so that, on such reasons, no one properly instructed on facts and law could reasonably entertain the belief, the conclusion would be inescapable that the Income-tax Officer could not have reason to believe that any part of the income of the assessee had escaped assessment and such escapement was by reason of the omission of failure on the part of the assessee to disclose fully and truly all material facts and the notice issued by him would be liable to be struck down as invalid.

The same principal is reiterated in the decision reported in Dr. Partap Singh and Anr. v. Director of Enforcement, Foreign Exchange Regulation Act and Ors. : 1986CriLJ824 .

11. If this is the meaning which we have to apply for the expression 'reason to believe', I believe that no person who was properly instructed on facts would come to such a conclusion. First respondent has acted irrationally in issuing the notice. Consequently the same is quashed. The revision petition is allowed. No costs. C.M.P. No. 4660 of 1998 is closed.


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