IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 28140 of 2009(J) --------------------------------------- PETITIONER(S): ---------------------- SASIDHARAN NAIR M.P., "NEETHIKA", SANTHIVILA, NEMOM P.O., THIRUVANANTHAPURAM. BY ADV. MR.BIJU BALAKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE JOINT SECRETARY TO GOVERNMENT & COMPETENT AUTHORITY, LAW (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR.M.A. ASIF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2009, ALONG WITH WP(C) NO. 28720 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28140/2009-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE OF PRACTICE DATED 16/03/2006. EXT.P2: COPY OF THE LETTER NO.1138/H2/08/LAW, DATED 17/01/2008 OF THE 3RD RESPONDENT. EXT.P3: COPY OF THE COMPLAINT DATED 09/01/2008 OF THE PASSPOT OFFICER, THIRUVANANTHAPURAM, REFERRED TO IN EXT.P2. EXT.P4: COPY OF THE EXPLANATION DATED 28/01/2008 SUBMITTED BY THE PETITIONER AGAINST EXT.P2. EXT.P5: COPY OF THE PAGE IN WHICH SMT.SANTHAMMA KUDAKASSERI KARUTHAKUTTY, SIGNED THE NOTARY REGISTER MAINTAINED BY THE PETITIONER. EXT.P6: COPY OF THE SHOW CAUSE NOTIE DATED 22/07/2008. EXT.P7: COPY OF THE REPLY STATEMENT DATED 09/08/2008. EXT.P8: COPY OF THE G.O.(RT)NO.832/09/LAW, DATED 19/09/2009. EXT.P9: COPY OF THE NOTIFICATION NO.1138/H2/2008/LAW, DATED 19/09/2009. EXT.P10: COPY OF THE REPRESENTATION DATED 26/09/2009. EXT.P11: COPY OF THE ACKNOWLEDGMENT CARD. EXT.P12: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. P.N.RAVINDRAN, J. --------------------------- W.P.(C) Nos. 28140 & 28720 OF 2009 -------------------------- Dated this the 2nd day of December, 2009 J U D G M E N T Common questions arise in these two writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. The petitioners in these writ petitions are Advocates practising at Thiruvananthapuram. The petitioner in W.P.(C) No. 28140 of 2009 was appointed as Notary on 14.3.1995 and the petitioner in W.P.(C) No. 28720 of 2009 on 16.12.1996. On 9.1.2008, the Passport Officer, Thiruvananthapuram sent Ext.P3 letter produced in W.P.(C) No. 28140 of 2009 to the Law Secretary, Government of Kerala enclosing along with it two affidavits in original, one each signed by the petitioners but not by the deponents. The Passport Officer had also enclosed the explanation submitted by the deponents. He had also enclosed copies of three other affidavits attested by other Notaries which did not bear the signature of the deponents but had been attested by the Notaries. By Ext.P3 letter produced in W.P.(C) No. 28140 of 2009, the Passport Officer requested the Law Secretary to take action against the petitioners. 3. On receipt of Ext.P3 letter from the Passport Officer, the Law Secretary forwarded copies thereof together with the accompanying papers to the petitioners and called for their explanation. The petitioner in W.P.(C) No. 28140 of 2009 submitted Ext.P4 reply dated 28.1.2008. W.P.(C) No. 28140/09 & 28720/09 2 Along with it he also enclosed Ext.P5, a true copy of the relevant page of the register maintained by him. It was stated that the deponent had come over to his office and signed the register maintained by him and that as he was in a hurry on the bonafide belief that the deponent had affixed her signature to the affidavit he had attested it over looking the fact that the deponent has not affixed her signature. He submitted that it is a bona fide mistake and that it was not done with malicious or dishonest intention. The petitioner in W.P.(C) No. 28720 of 2009 submitted Ext.P5 reply wherein he stated that as he was in a hurry to take his daughter to the college, he attested the affidavit and asked the deponent to immediately sign it. He stated that the parents of the deponent are persons known to him and that was the reason why he attested the affidavit even before the deponent signed it. He also stated that he was not motivated by any malafide or dishonest intention to attest the affidavit even before the deponent signed it. 4. After the petitioners submitted their explanations, the Joint Secretary, Law Department, conducted an enquiry and submitted a report to the Law Secretary. On the basis of the said enquiry report, the Law Secretary issued Ext.P6 show cause notice dated 22.7.2008 to the petitioners informing them that the enquiry conducted by the competent authority prima facie reveals that they have committed the offence under Section 8(1)(a) of the Notaries Act, 1952 and that professional misconduct W.P.(C) No. 28140/09 & 28720/09 3 on their part is prima facie made out. The petitioners were called upon to show cause why disciplinary action as contemplated under Rule 13(12)(b) of the Notaries Rules, 1956, should not be taken against them. On receipt of Ext.P6 show cause notice, Ext.P7 reply was sent. Thereafter they were heard on 24.3.2009 by the Law Secretary. The Law Secretary thereafter passed Ext.P8 order dated 19.9.2009 debarring the petitioners from practising as Notaries and issued Ext.P9 notification dated 19.9.2009 striking off their names from the Register of Notaries. A copy of Ext.P8 is produced and marked as Ext.P11(a) in W.P.(C) No. 28720 of 2009. The said orders are under challenge in these writ petitions. 5. I heard the learned counsel appearing on both sides. I have also considered the materials placed on record. The learned counsel appearing for the petitioners contended that in the absence of an allegation in the show cause notice or a finding in the impugned orders to the effect that the petitioners had acted with wrongful intention or a corrupt motive, the order debarring them from practising as Notaries and removing their names from the Register of Notaries is illegal and is liable to be set aside. The learned counsel relied on the decision of a learned Single Judge of this Court in Mohandas v. State of Kerala (2001 (3) KLT 174) and the decision of a Division Bench of the Alahabad High Court in State Government of Uttar Pradesh v. Kashi Prasad (AIR 1969 Allahabad 363) in support of their contentions. Per contra, the learned Government Pleader contended that W.P.(C) No. 28140/09 & 28720/09 4 as the petitioners admit that they had attested the affidavits even before the deponents signed it, no further proof is required to establish that they had committed an act of misconduct in the discharge of their duty as a Notary. 6. A Division Bench of the Alahabad High Court has in State Government of Uttar Pradesh v. Kashi Prasad (AIR 1969 Allahabad 363) held that every irregularity or negligence on the part of a Notary would not amount to professional misconduct. It was held that professional misconduct suggests dishonesty or a conduct involving moral turpitude. In Mohandas v. State of Kerala (2001 (3) KLT 174) a learned Single Judge of this Court held that in order to characterise a certain act or omission as misconduct there must be a wrongful intention or a corrupt motive. The learned single Judge held that the conduct must be such that the person is unworthy of continuing in the legal profession. The learned Single Judge held that as there is no allegation as in the instant case, that the petitioner therein had done the act complained of with wrongful intent or with any corrupt motive it cannot be said that he is guilty of professional misconduct. 7. In the instance case, a close reading of Ext.P3 letter and Ext.P6 show cause notice makes it evident that the petitioners were not called upon to meet a charge that they had acted with dishonest intention or that their conduct involves moral turpitude. There is no allegation that the petitioners attested the affidavits even before the deponents affixed their signature with a wrongful intention or corrupt motives. The petitioners were W.P.(C) No. 28140/09 & 28720/09 5 not called upon to meet a charge that they have committed an act of professional misconduct which renders them unworthy to continue in the legal profession as Notaries. As held by the Division Bench of the Alahabad High Court in State Government of Uttar Pradesh v. Kashi Prasad (supra) every irregularity or negligence on the part of a Notary would not amount to professional misconduct. There should be proof of dishonesty or conduct involving moral turpitude. In the impugned orders also, the Government have not found that the petitioners have committed any act of misconduct with a dishonest or corrupt motive or that their conduct involves moral turpitude. In such circumstances, I am of the opinion that the decision taken by the Government to permanently debar the petitioners from practising as Notaries and the consequential notification issued by the Government removing their names from the Register of Notaries cannot be sustained. 8. Under Rule 13(12) of the Notaries Rules, 1956, the Government can either cancel the certificate of practice and perpetually debar the Notary from practice or suspend him from practice for a specified period or let him off with a warning, according to the nature and gravity of the misconduct proved. In view of my conclusion that no grounds exist to perpetually debar the petitioners from practicing as Notaries, the Government can only suspend them from practising as Notaries for a specified period or let them off with a warning. The petitioners have been W.P.(C) No. 28140/09 & 28720/09 6 practising as Notaries for more than a decade. Apart form the solitary act of misconduct which forms the foundation for the impugned orders, no other previous instance of misconduct in the discharge of their duties has been placed on record or referred to in the impugned orders. The impugned orders were issued on 19.9.2009 and names of the petitioners stood removed from the Register with effect from that date. Since no previous act of misconduct is alleged or found against the petitioners, I am of the opinion that the petitioners should be deemed to be under suspension from 19.9.2009 onwards till this date. I, accordingly allow these writ petitions, quash the impugned orders and direct the respondents to treat the period from 19.9.2009 till date as period during which the petitioners were suspended from practising as Notaries. The respondents shall forthwith take steps to restore the names of the petitioners in the Register of Notaries with effect from 3.12.2009 and shall also revalidate their Certificate of Practice. P.N.RAVINDRAN, JUDGE vps