Appeal No 6120 of 1983
From the Judgment and Order dated 2541983 of the Disciplinary Committee of the Bar Council of India in BCI Tr
Case No 32 of 1982
Bharat Sangal for the Appellant
VR Reddy Addl
Solicitor General T Ratnam and DN Goburdhan for the Respondents
by MOHAN J This is a statutory appeal under Section 38 of the Advocates Act of 1961
The brief facts are as under The respondent engaged the appellant as a counsel in suit No 510 of 1964 this was in April 1976
The suit was ultimately compromised on 14677
It was ordered that out of the total amount lying with the court receiver a sum of Rs 64000 shall be paid over to the plaintiff the balance was to be paid to the respondent and possession of suit property was to be handed over to the respondent by the court receiver
During the pendency of the suit the court receiver inducted one Usman Ghani Haji Mohamed as a tenant
He filed CS No 7 of 1978 praying for an interim injunction restraining the court receiver from handing over possession to the respondent
That suit was continued
After the compromise decree was passed on 14677 the appellant who was the counsel for the respondent was requested to withdraw the amount lying with the court receiver and hand over the same to the 1009 respondent
For this purpose a letter of authorisation to enable the appellant to receive the amount was also issued Pursuant to the letter of authorisation and instructions a total amount of Rs 50379 was withdrawn by the appellant from the court receiver
Out of this he paid only Rs 18000 and the rest was not paid
Therefore the respondent preferred a complaint before the Bar Council of India on 9181
The appellant was issued a notice by the Bar Council to which he submitted his reply
On consideration of his reply and hearing the arguments the Disciplinary Committee of the Bar Council of India was of the view that the burden of proving the fact that the respondent had paid a sum of Rs 50379 lay on the appellant
Certain receipts produced to evidence payment to the respondent were not accepted
The plea of the appellant that the account books had been lost was held to be untrue
Ultimately the appellant was suspended for a period of two years and further directed to pay a sum of Rs 500 to the complainant the respondent herein
It is against this order the present appeal has been preferred
Learned counsel for the appellant took us through the impugned order and urged that the Committee had not properly appreciated the evidence especially the receipts which were produced by the appellant to evidence the payment
It is incorrect to hold that the receipt dated 8877 was a suspicious document merely because the account books were not produced it would not follow that the payments made by the appellant could be disbelieved
We pointed out to the learned counsel for the appellant that the order under appeal is unexceptional and there was no case for interference
We felt that the order of suspension of two years was not commensurate with the charges of misappropriation
Therefore we directed the issue notice to the appellant which came to be accepted by the learned counsel Mr Bharat Sangal
Inspite of the fact that the appellant has not chosen to appear in order to make over the payment of the amount voluntarily
Therefore we are left with no option then to decide the case ourselves on merits
The Disciplinary Committee of the Bar Council on a proper appreciation of the evidence disbelieved the so called receipts evidencing the payment
It has come to the correct conclusion that the receipt dated 8th of August 1979 was got up on a blank signed paper
Hence the due 1010 execution of the receipt had not been proved by the appellant
Besides the statement of the appellant that the account books had been lost in transit had been rightly disbelieved
Under these circumstances this is a clear case wherein the misappropriation by the appellant has been fully established
Once this conclusion is arrived at the question is what is the punishment to be imposed Advocacy is not a craft but a calling a profession wherein devotion to duty constitutes the hall mark
Sincerity of performance and the earnestness of endeavor are the two wings that will bare aloft the advocate to the tower of success
Given these virtues other qualifications will follow of their own account
This is the reason why legal profession is regarded to be a noble one
But it cannot be allowed to become a sorriest of trades
It will be useful to quote what Sharaswood said of this profession A lower without the most sterling integrity may shine for a while with meteoric splendor but his light will soon go out in blackness of darkness
It is not in every man s power to rise to eminence by distinguished abilities
It is not in every man s power with fe w exceptions to attain respectability competence and usefulness
The temptations which beset a young man in the outset of his professional life especially if he is in absolute dependence upon business for his subsistence are very great
The strictest principles of integrity and honour are his only safety
Let him begin by swerving from truth or fairness in small particulars he will find his character gone whispered away before he knows it
Such a one may not indeed be irrecoverably lost but it will be years before he will be able to regain a firm foothold
There is no profession in which moral character is so soon fixed as in that of the law there is none in which it is subjected to severer scrutiny by the public
It is well that it is so
The things we hold dearest on earth out fortunes reputations domestic peace the future of those dearest to us nay our liberty and life itself we confide to the integrity of our legal counselors and advocates
Their character must be not only without a stain but without suspicion
From the very commencement of a lawyer s career let him cultivate 1011 above all things truth simplicity and candor
They are cardinal virtues of a lawyer
Let him always seek to have a clear understanding of his object be sure it is honest and right and then march directly to it
The covert indirect and insidious way of doing anything is always the wrong way
It gradually hardens the moral faculties renders obtuse the perception of right and wrong in human actions weighs everything in the balance of worldly policy and ends most generally in the practical adoption of the vile maxim that the end sanctifies the means
 Therefore an exacting standard is what is expected of an advocate
This court has taken the view in M Veerabhadra Rao vs Tek Chand 1984 Supp
SCC 571 as to how in such a case professional misconduct has to be dealt with
In that case the advocate committed forgery by attesting false affidavits which was held to be a serious misconduct
This court pointed out the duties of the members of the bar in the following passage Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold
Members of the profession claimed that they are the leaders of thought and society
In the words of Justice Krishna Iyer in Bar Council of Maharashtra vs MV Dabholkar 19751 2 SCC 702 the role of the members of the Bar can be appreciated
He said at page 718 The bar is not a private guild like that of barbers butchers and candlestick makers  but by bold contrast a public institution committed to public justice and pro bono public service
The grant of a monopoly licence to practice law is based on three assumptions 1 There is a socially useful function for the lawyer to perform 2 The lawyer is a professional person who will perform that function and 3 His performance a a professional person is regulated by himself and more formally by the profession as a whole
The central function that the legal profession must perform is nothing less than the ad 1012 ministration of justice  The Practice of Law is a Public Utility  The Lawyer the Public and Professional Responsibility  by F Raymond Marks et al Chicago American Bar Foundation 1972 pp 288 289
A glance at the functions of the Bar Council and it will be apparent that a rainbow of public utility duties including legal aid to the poor is cast on these bodies in the national hope that the members of this monopoly will serve society and keep to canons of ethics befitting an honorable order
If pathological cases of member misbehavior occur the reputation and credibility of the Bar suffer a mayhem and who but the Bar Council is more concerned with and sensitive to this potential disrepute the few black sheep bring about The official heads of the Bar ie the Attorney General and the Advocates General too are distressed if a lawyer stoops to conquer  by resort to soliciting touting and other corrupt practices
If these are the high expectations of what is describes as a noble profession its members must set an example of conduct worthy of emulation
If any of them falls from that high expectation the punishment has to be commensurate with the degree and gravity of the misconduct
Accordingly the punishment was increased to one of suspension for a period of five years having regard to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct
In the case on hand admittedly the complainant respondent does not know English
It is equally admitted that the appellant had withdrawn the money from the Court Receiver
None of the correspondence addressed to the respondent mentioned about the receipt dated 8th of August 1977
The plea taken by the appellant based on the receipt is clearly false
The appellant has been withdrawing the money over 14 years and he has illegally retained the amount
Out of a sum of Rs 50379 which was admittedly withdrawn from the court receiver only Rs 18000 was paid on different occasions
The said amount was also spread over and paid on 1013 different occasions
On a direction of this court a sum of Rs 10000 had been deposited by the appellant which has been withdrawn by the respondent as per order dated 3rd September 1991
Still a sum of Rs 22379 is due
In view of the established finding of misappropriation we think the proper punishment will be the name of the Advocate must be struck off the rolls
We order accordingly
In addition to this the question arises whether we can direct the refund of the sum of Rs 22379 which still is pending for the appellant
Section 38 of the Advocates Act says as follows
Appeal to the Supreme Court Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or Section 37 or the Attorney General of India or the Advocate General of the State concerned as the case may be may within sixty days of the date on which the order is communicated to him prefer an appeal to the Supreme Court and the Supreme Court may pass such order including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India thereon as it deems fit Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to Prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard when it says  deems fit it must be construed as to meet the ends of justice
We feel the respondent should not be driven to a civil court for recovery of this amount even when the appellant has been found guilty by his own peers which we have also confirmed
Therefore we direct that there shall be a decree in favour of the respondent complainant for a sum of Rs 22379 together with interest at 9 per annum from the date of the complaint till the date of payment
The appeal is dismissed in the above terms with costs of the respondent which is quantified at Rs 3000 Rs three thousand only
Before we part with the case we may usefully quote Harry R Blythe 1014 cited in Great God the hour has come when we must clear The legal fields from poison and from fear We must remould our standards build them higher And clear the air as though by cleansing fire Weed out the damning traitors to the law Restore her to her ancient place of awe VPR Appeal dismissed


Summary:
The respondent who was employed as an Executive Engineer in the DDA appellant was served on 61185 a preliminary memo alleging irregularities committed by him in the construction works and that they were being investigated
On 11790 a chargesheet was framed on the basis of these irregularities and on 13790 the chargesheet was despatched for being served on him
The respondent however proceeded on two months medical leave and therefore on 17790 another Executive Engineer workIng in the same Wing as the respondent received It and gave intimation that the respondent was on leave and adding the same would be handed over to the respondent on his return from leave
A Departmental Promotion Committee met on 281190 and in view of the earlier decision to Initiate disciplinary proceedings against the respondent It followed the sealed cover procedure  in the case of the respondent
Efforts to effect personal service of the chargesheet on the respondent on account of his non availability continued and the same could be served personally on him only on 25191
As a result of the selection made by the DPC certain persons were promoted to the post of Superintending Engineer while the respondent s matter was kept In abeyance to await the result of the disciplinary proceedings
The respondent riled a writ petition In the High Court for a writ of 1034 mandamus directing the
DDA to promote him as Superintending Engineer with effect from the date on which his juniors had been promoted to the said post on the basis of the selection by the DPC
The High Court allowed the writ petition relying on Union of India and Others vs K V Jankiraman and Others   and taking the view that the framing of charge would carry with it the duty to issue and serve the same on the employee that there was no justification for the DDA to follow the sealed cover procedure in this case on 281191 when the Departmental Promotion Committee met since actual service of the chargesheet was made only after the date on which the DPC met
Accordingly the High Court directed the DDA to open the sealed cover and to promote the respondent as Superintending Engineer if otherwise found suitable by the DPC and to give him seniority and all consequential benefits from the date on which his juniors were so promoted
The DDA appellant challenged the aforesaid decision by special leave in this Court and contended that fankiraman cannot be read to hold in a case like the present one where the disciplinary proceedings have been initiated by framing the chargesheet and despatching the same that the chargesheet had not been issued and therefore the sealed cover procedure could not be followed by the DPC on 281190
On behalf of the respondent official it was urged that Jankiraman holds that without effective service of the chargesheet on the employee the disciplinary proceedings cannot be said to have been initiated and reliance was also placed on the Office Memorandum dated 12188 which required actual service and not mere issuance of the chargesheet for initiating the disciplinary proceedings
Allowing the appeal and setting aside the judgment of the High Court this Court HELD  1
The sealed cover  procedure is applicable in cases where the disciplinary proceedings are pending  in respect of the government servant or a decision has been taken to initiate disciplinary proceedings 
Thug on a decision being taken to initiate disciplinary proceedings the guidelines contained in OMs dated 14992 and 12188 attract the sealed cover procedure
1040 D 2
The decision to initiate disciplinary proceedings cannot be sub 1035 sequent to the issuance of the chargesheet since issue of the chargesheet is a consequence of the decision to initiate disciplinary proceedings
The service of the chargesheet on the government servant follows the decision to initiate disciplinary proceedings and it does not precede or coincide with that decision
The delay if any if service of the chargesheet to the government servant after it has been framed and despatched does not have the effect of delaying initiation of the disciplinary proceedings inas much as information to the government servant of the charges framed against him by service of the chargesheet is not a part of the decision making process of the authorities for initiating the disciplinary proceedings
1041 B D 3The plain meaning of the expression a decision has been taken to initiate disciplinary proceedings  used in clause ii of para 2 of OM dated 12188 also promotes the object of the provision
The expression refers merely to the decision of the authority and knowledge of the government servant thereof does not form a part of that decision
The change made in clause ii of para 2 in OM dated 14992 merely clarifies this position by using the expression chargesheet has been issued  to indicate that service of chargesheet is not necessary and issue of the chargesheet by its despatch indicates beyond doubt that the decision to initiate disciplinary proceedings was taken
Jankiraman takes the same view and it is not possible to read that decision otherwise
1041 E F 4
The decision in Janiraman is based interalia on OM dated 12188
The facts of the cases dealt with in the decision in Jankiraman do not indicate that the court took the view that even though the chargesheet against the government servant was framed and direction given to despatch the same to the government servant as a result of the decision to initiate disciplinary proceedings taken prior to the meeting of the DPC that was not sufficient to attract the sealed cover procedure merely because service of the chargesheet was effected subsequent to the meeting of the DPC 1041 H 1042 A 5 Issue  of the chargesheet in the context of a decision taken to initiate the disciplinary proceedings must mean as it does the framing of the chargesheet and taking of the necessary action to despatch the chargesheet to the employee to inform him of the charges framed against him requiring his explanation and not also the further fact of service of the 1036 chargesheet on the employee
It is so because knowledge to the employee of the charges framed against him on the basis of the decision taken to initiate disciplinary proceedings does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings even if framing the charges forms a part of that process in certain situations
1043 E F 6
The meaning of the word issued  has to be gathered from the context in which it is used
The issue of a chargesheet therefore means its despatch to the government servant and this act is complete the moment steps are taken for the purpose by framing the chargesheet and despatching it to the government servant the further fact of its actual service on the government servant not being a necessary part of its requirement
This is the sense in which the word issue  was used in the expression chargesheet has already been issued to the employees  in para 17 of the decision in Janakiraman
1044 B C 7
The decision to initiate the disciplinary proceedings against the respondent had been taken and chargesheet had also been issued to the respondent prior to 281190 when the DPC adopted the sealed cover procedure
It cannot be held otherwise merely because service of the chargesheet framed and issued earlier could be effected on the respondent after 281190 on account of the absence of the respondent
1044 D Union of India and Others vs KV Jankiraman and Others   referred to and relied on
1037 G