- (1.) A host of questions of seminal significance, not only for the Advocate who has been suspended from practising his profession for 3 years on the charge of having withdrawn a suit (as settled) without the instructions from his client, but also for the members of the legal prefession in general have arisen in this appeal (Appeal under section 38 of the Advocates' Act, 1961) :- (1) Whether a charge apprising him specifically of the precise nature and character of the professional misconduct ascribed to him needs to be framed. (2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of guilt and a punishment of this nature can be inflicted on him (3) Whether the allegations and the finding of guilt require to be proved beyond reasonable doubt (4) Whether the doctrine of benefit of doubt applies (5) Whether an Advocate acting bona fide and in good faith on the basis of oral instructions given by some one purporting to act on behalf of his client, would be guilty of professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable negligence punishable as professional misconduct
(2.) The suit was a suit for recovery Rs. 30,098/- (Suit No. 65/81 on the file of Additional City Civil Judge, Bangalore). It appears that the complainant had entrusted the brief to the appellant which he in his turn had entrusted to his junior colleague (respondent No. 2 herein) who was attached to his office and was practising along with him at his office at the material time. At the point of time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his separate office. On the docket of the brief pertaining to the suit, the appellant made an endorsement giving instructions to withdraw the suit as settled. A sketch was drawn on the back of the cover to enable the person carrying the brief to the junior colleague to locate his office in order to convey the instructions as per the endorsement made by the appellant. The allegations made by the complainant against the appellant are embodied in paragraphs 1 and 2 of his complaint : - 1. The petitioner submits that he entrusted a matter to the Second Respondent to file a case against Shri S. Anantharaj for recovery of a sum of Rs. 30,098/ - with Court costs and current interest in Case No. O.S.1965/81 on the file of the City Civil Judge at Bangalore. The Petitioner submits that the said suit was filed by the first respondent who was then a Junior of the Second respondent. The petitioner submits that the matter in dispute in the suit was not settled at all and the first respondent without the knowledge and without the instructions of the petitioner has filed a memo stating that the matter in settled out of Court and get the suit dismissed and he has also received half of the institution court fee within 10 days since the date of the disposal of the suit. The petitioner submits that he has not received either the suit amount or the refund of court fee and he is not aware of the dismissal of the suit as settled out of court. 2. The petitioner submits that when the case was posted for filing of written statement itself the first respondent has filed such a memo stating that the suit was settled out of Court. The petitioner submits that in fact the respondents did not even inform the petitioner about the dates of hearing and when the petitioner asked the dates of hearing the respondents informed the petitioner stating that his presence is not required in the Court since the case was posted for filing of written statement and therefore, the petitioner did not attend the Court on that day. The petitioner submits that when he enquired about the further date of hearing the respondents did not give the date and said that they would verify the next date of hearing since they have not attended the case since the case was posted for filing written statement by the defendant. The petitioner submits that when he himself went to the Court and verified he found to his great surprise that the suit is dismissed as settled out of court and latter learnt that even the half of the institution court fee is also taken by the first respondent within 10 days. The version of the appellant may now be unfolded :- (1) One Gautam Chand (R.W. 3) has been a longstanding client of the appellant. Gautam Chand had business dealings with the plaintiff Haradara and the Defendant Anantaraju. Besides, Anantaraju executed an agreement dated 9-8-1980 to sell his house property to Gautam Chand. He received earnest money in the sum of rupees 35.000/- from Gautam Chand. Anantaraju, however, did not execute the sale deed within the stipulated period and during the extended period. It was in these circumstances that Gautam Chand (RW 3) approached the appellant for legal advice. (2) It is the common case of parties that Gautam Chand introduced the complainant Haradara to the appellant and his colleague Advocate respondent No. 2. (3) The appellant caused the issue of notice dated 1-6-1981 (Ex.R/ 15) on behalf of Gautam Chand addressed to the seller Anantaraju calling upon him to execute the sale deed. On the same date, a notice was separately issued on behalf of the complainant Haradara addressed to Anantaraju demanding certain amounts due on the three 'self' bearer cheques aggregating Rs. 30,098/- issued by Anantaraju in course of their mutal transactions. This notice was issued by the Advocate respondent No. 2 acting on behalf of the complainant Haradara. (4) Gautam Chand (RW 3) and Haradara (PM 1) were friends. Anantaraju was their common adversary. There was no conflict of interests as between Gautam Chand and Haradara. Gautam Chand instructed the appellant and his colleague respondent No. 2. Ashok that he was in possession of the said cheques issued by Anantaraju and that no amount was actually due from Anantaraju to the complainant Haradara. Gautam Chand was desirous of steps to induce Anantaraju to execute the sale deed in his favour. (5) A suit being O.S. No. 1965 of 1981 was instituted on behalf of the complainant Haradara claiming an amount of Rs. 30,000/- and odd, from the defendant Anantaraju on the basis of the aforesaid cheques. It was instituted on 30-6-1981. An interlocutory application was moved on behalf of Haradara by respondent No. 2 as his Advocate seeking the attachment before judgment of the immovable property belonging to the defendant Anantaraju. The property was in fact the subject of an agreement to sell between Anantaraju and Gautam Chand (RW 3). The Court initially declined to grant an order of attachment. In order to persuade the Court, certain steps were taken through the said Gautam Chand. He caused the publication of a notice stating that the property in question was the subject matter of an agreement between Anantaraju and himself and it should not be dealt with by anyone. The publication of this notice was relied upon subsequently on behalf of the complainant Haradara by his advocate ( respondent No. 2), Ashok in seeking an order of attachment. The Court accepted his submissions and passed the order of attachment. (6) Subsequently the defendant Anantaraju executed the sale deed dated 27th Nov. 1981 in favour of Gautam Chand. The object of the suit was achieved. The sale deed was in fact executed during the subsistence of the order of attachment concerning the same property. The plaintiff Haradara has not objected to it at any time. Consistently, the appellant had reasons to believe the information of settlement of dispute, conveyed by the three parties together on 1-2-1981. (7) Gautam Chand (RW 3) and the complainant Haradara acted in mutual interest and secured the attachment of property which was the subject matter of an agreement to sell in favour of Gautam Chand. The suit instituted in the name of the complainant Haradara was only for the benefit of Gautam Chand by reference to his interest in the property. (8) The appellant conveyed information of the settlement of dispute by his note made on the docket. He drew a diagram of the location of residence of the respondent No. 2 Ashok Advocate. (Ex. B-1 A) at page 14 (Additional Documents). The papers were delivered to respondent No. 2 Ashok Advocate by Gautam Chand (RW 3). (9) After satisfying himself, respondent No. 2 Ashok advocate appeared in Court on 10-12-81 and filed a Memo prepared in his handwriting recording the fact of settlement of dispute and seeking withdrawal of the suit. The Court passed order dated 10-12-1981 dismissing the suit. O.S. No. 1965 of 1981. (10) Even though the plaintiff Haradara gained knowledge of the disposal of suit, he did no meet the appellant nor did he address him for over 1 1/2 years until May, 1983. He did not also immediately apply for the restoration of suit. An application for restoration was filed on the last date of limitation on 11-1-1982. The application Misc. 16 of 1982 was later allowed to be dismissed for default on 30-7-1982. It was later sought to be revived by application Misc. No. 581 of 1982. Necessary orders were obtained on 16-7-1982. Thus Misc. 16 of 1982 ( Application for restoration of suit) is pending in Civil Court. ' On a survey of the legal landscape in the area of disciplinary proceedings this scenario emerges :- (1) In exercise of powers under Section 35 contained in Chapter V entitled "conduct of Advocates", on receipt of a complaint against an Advocate (or suo motu) if the State Bar Council has 'reason to believe' that any Advocate on its roll has been guilty of "professional or other misconduct". Disciplinary proceeding may be initiated against him. (2) Neither Section 35 nor any other provision of the Act defines the expression 'legal misconduct' or the expression 'misconduct'. (3) The Disciplinary Committee of the State Bar Council is authorised to inflict punishment, including removal of his name from the rolls of the Bar Council and suspending him from practice for a period deemed fit by it, after giving the Advocate concerned and the 'Advocate General' of the State an opportunity of hearing. (4) While under Section 42(l) of the Act the Disciplinary Committee has been conferred powers vested in a Civil court in respect of certain matters including summoning and enforcing attendance of any person and examining him on oath, the Act which enjoins the Disciplinary Committee to 'afford an opportunity of hearing' (Vide Sec. 35) to the Advocate does not prescribe the procedure to be followed at the hearing. (5) The procedure to be followed in an Enquiry under Section 35 is outlined in Part VII of the Bar Council of India Rules*made under the authority of Section 60 of the Act. * Published in Gazette of India on September 6. 1975 in Part III Section 4( pages 1671 to 1697). (6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned parties that is to say the complainant and the concerned Advocate as also the Attorney General or the Solicitor General or the Advocate General. It also enjoins that if it is considered appropriate to take oral evidence the procedure of the trial of civil suits shall as far as possible be followed (1). 1. Rule 8(1) "The Disciplinary Committee shall hear the Attorney General or the Solicitor General of India or the Advocate General, as the case may be or their Advocate, and parties or their Advocate, if they desire to be heard, and determine the matter on documents and affidavits unless it is of the opinion that it should be in the interest of justice to permit cross-examination of the deponents or to take oral evidence, in which case the procedure for the trial of civil suits, shall as far as possible be followed."
(3.) At this juncture it is appropriate to articulate some basic principles which must inform the disciplinary proceedings against members of the legal profession in proceedings under Section 35 of the Advocates Act, read with the relevant Rules: i) essentially the proceedings are quasicriminal in character inasmuch as a Member of the profession can be visited with penal consequences which affect his right to practise the profession as also his honour; under Section 35(3)(d) of the Act, the name of the Advocate found guilty of professional or other misconduct can be removed from the State Roll of Advocates. This extreme penalty is equivalent of death penalty which is in vogue in criminal jurisprudence. The Advocate on whom the penalty of his name being removed from the roll of Advocates is imposed would be deprived of practising the profession of his choice, would be robbed of his means of livelihood, would be stripped of the name and honour earned by him in the past and is liable to become a social aparthied. A disciplinary proceeding by a statutory body of the Members of the profession which is statutorily empowered to impose a punishment including a punishment of such immense proportions is quasi-criminal in character : (ii) as a logical corrolory it follows that the Disciplinary Committee empowered to conduct the enquiry and to inflict the punishment on behalf of the body, in forming an opinion must be guided by the doctrine of benefit of doubt and is under an obligation to record a finding of guilt only upon being satisfied beyond reasonable doubt. It would be impermissible to reach a conclusion on the basis of preponderance of evidence or on the basis of surmise, conjucture or suspicion. It will also be essential to consider the dimension regarding mens rea:;