NORA TANMAL CHOURARIA

M.R. MURLI AND ANR.

APRIL 16, 2004

[V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.]

Advocates Act, 1961; Ss. 35 and 38 :

Complaint of misconduct filed by tenant against landlord, a practising C Advocate-State Bar Council transferring it to Disciplinary Committee of Bar Council of India-BC/ refasing to enquire into the complaint on grounds that landlord did not appear in the rent control procee<fings as an Advocate but as a party in person and no criminal proceeding was initiated by the tenant nor did police file charge-sheet against the landlord-On appeal, Held: D Standard required to be maintained by a member of the legal profession must be commensurate with the nobility thereof-,-Although power of BC/ is not limited but the thrust of charge must be such which would necessitate initiation of disciplinary proceeding-Disciplinary Committee of BC/, a statutory body, is duty bound to arrive at finding of facts in respect of the complaint-However, findings of BC/ not so irrational meriting interference by this Court.

E Words and Phrases:

'Misconduct'-Meaning of-In the context of Advocates Act, 1961.

Respondent-landlord, an Advocate, initiated a rent control F proceeding against the appellant-tenant. During pendency of the proceedings first respondent filed a complaint before the Bar Council of India against the landlord/Advocate citing therein three instances of misconduct against him. The State Bar Council had transferred the complaint to the Disciplinary Committee of the Bar Council of India (BCI).

G The Disciplinary Committee of BCI refused to enquire into the complaint

since factum of occurrence of the incidents were not reliable; that no criminal proceeding was initiated by filing a complaint against the first respondent by the appellant; that no charge-sheet was filed by the police against him; that he has been appearing in the rent control proceedings not as an Advocate but as a party in person; and that the appellant has If 266

N. CHOURARIA v. M.R. MURLI 267

failed to substantiate the allegation in the complaint. Hence the present A appeal.

It was contended by the appellant that the Advocate on the roll of the Bar Council could be proceeded against for committing any misconduct and not necessarily a professional misconduct; and that since the respondent had assaulted him, it must be held to be the acts of misconduct. B

The respondents submitted that the appellant has been harassing him by falsely implicating him in a number of cases but no relief had been granted in these cases; that if an act o~ assault takes place in a Court room, the same would have been brought to the notice of the presiding officer; C that neither any private complaint was filed nor any proceeding in criminal court was initiated by the appellant against him; and that no evidence in support of the complaint was produced by the appellant before the Disciplinary Committee of the Bar Council of India.

Dismissing the appeal, the Court

HELD:l.l. A member of legal profession is expected to maintain a standard in dignified and determined manner. The standard required to

be maintained by the member of the legal profession must be commensurate with the nobility thereof. A Lawyer is obligated to observe those norms which make him worthy of the confidence of the community E in him as an officer of the Court. [273-D-E)

Bar Council, Maharashtra v. M V. Dabholkar, AIR [1976) SCC 242, referred to.

1.2. Although the power of the Bar Council is not limited, the thrust F of charge must be such which would necessitate initiation of disciplinary proceedings. A professional or other misconduct committed by a member of the profession should ordinarily be judged qua profession. To determine the quantum of punishment which may be imposed on an Advocate, the test of proportionality shall be applied which would also depend upon the nature of the acts complained of. No universal rule thus can be laid down G as regard initiation of a proceeding for misconduct of a member of th~ profession. (273-F-G(

'D' an Advocate of the Supreme Court, (1955) 2 SCR 1006, referred to.

A 1.3. Misconduct has not been defined in the Advocates Act, 1961.

Misconduct, inter a/ia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally B or unintenlionally. It means "improper behaviour, intentional wrong doing or deliberate violation of a rule of standard or behaviour". Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law. (271-E-F)

C Delhi Cloth and General Mills Co. Ltd v. Its Workmen, (1969) 2 LLJ 755 and B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, referred to •

. Probodh Kumar Bhowmick v. University of Calcutta, (1994) 2 Calcutta law Journal 456, referred to.

D Law Lexicon by P. RamanathAiyar, Reprint Edition (1987) p. 821, referred to.

Black's Law Dictionary, Sixth Edition, p. 999, referred to.

1.4. The Disciplinary Committee of the Bar Council of India is a E statutory body. At the first instance the duty to arrive at a finding of facts in respect of complaint made against a member of the legal profession is upon it. This Court although enjoys extensive and wide jurisdiction uuder Section 38 of the Act, the opinion of the Bar Council shall carry great weight. (274-D)

F LS. In the instant case, the Disciplinary Committee had considered the conduct of the appellant in order to judge as to whether the acts on the part of the respondents amount to misconduct. There was absolutely no reason as to why the appellant did not make any complaint to the State Bar Council immediately after occurrence of the incidents; that there was absolutely no reason as to why he did not pursue the FIR/complaint lodged G with the Police seriously; that in relation to the incident which allegedly took place inside the Court room it was expected of the appellant or his Advocate to bring the same to the notice of the Court; and that even in relation to these incidents neither any complaint was made before the Presiding Officer of the Court nor a proceeding was initiated. In the fact H situation of the case, the findings of the Bar Council cannot be sairl to be

N. CHOURARIAv. M.R. MURLI [SINHA, J.] 269

so irrational meriting interference by this Court. (274-F-G-H; 275-A-Bl A

'D' an Advocate of the Supreme Court, ( 1955) 2 SCR 1006; Hikmat Ali Khan v. Ishwar Prasad Arya, (1997) 3 SC 131 and N.G. Dastane v.

Shrikant S. Shivde and Anr., (2001) 6 SC 135, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5476of1999. B

From the Judgment and Order dated 27.2.99 of the Disciplinary Committee of the Bar Council of India in B.C.I.T.R. No. 73of1997.

S.B. Upadhyay, R.R. Dubey and Shiv Mangal Sharma for the Appellants.

T. Raja for the Respondent

The Judgment of the Court was delivered by

S.B. SINHA, J. INTRODUCTION:

An order of the Bar Council of India dated 27 .2.1999 passed in BCI D TR No.73/1997 refusing to enquire into a complaint of purported misconduct on the part of the respondent herein is in question in this appeal preferred by the Appellant herein under Section 38 of the Advocates Act, 1961.

BACKGROUND FACTS: E

The relationship between the appellant and the respondents herein is that of landlords and tenant. A rent control proceeding was initiated by the respondents against the appellant. While the rent control proceeding was pending in the small causes court, they allegedly misconducted themselves by reason of following acts of omissions and commissions :- F

(1) On 8.10.1993 when the appellant came out of the court hall of the said court after attending the appeal pending there, the first respondent allegedly came from behind and hit him on his back and ran away.

(2) On 26.10.1993 while the appellant was com.ing out of the court G hall, the first respondent accompanied with some rowdy elements threatened to kill him. The matter was allegedly reported to the police on the same day.

(3) On 1.3.1995 when the learned Xth Judge left for his chamber H

during the lunch break and while the appellant was leaving the court hall along with his advocate Shri S.Vijayranjan, the first respondent kicked him on the knee of his left leg in the court room with an intention to cause injury and further asked him not to appear in the court for evidence.

B The disciplinary committee of the Bar Council of Tamil Nadu upon

receipt of the said complaint of the appellant herein initiated a proceeding.

The matter ultimately appeared to have been transferred to the disciplinary committee of the Bar Council of India.

Impugned Order of the Bar Council :

The disciplinary committee of the Bar Council of India noticed that in relation to the aforementioned acts of omission and commission on the part of the respondents, no criminal proceeding was initiated by filing a complaint petition by the appellant. No charge-sheet had also been filed J>y the police D in relation to the occurrence dated 26.10.1993 wherefor an FIR had been lodged. It was further accepted that the first respondent had not been appearing in the aforementioned rent control proceedings as an advocate but as a party in person. Having regard to the fact that till the date of passing of the impugned order neither the appellant herein produced any document to substantiate any follow up action on his part in respect of complaint filed by him before the E police authority, nor did he file any private complaint, the committee was prime facie of the view that the factum of occurrence of the said incidents are not reliable. Further, it was noticed that the first respondent appeared in the said litigation not as advocate but as litigant in person.

Submissions : F Mr. S.B. Upadhyay, learned counsel appearing on behalf of the appellant, inter a/ia, would submit that under Section 35 of the Advocates Act an advocate on the roll of the Bar Council can be proceeded against for committing any misconduct which may not be confined to professional misconduct; the Bar Council grossly erred in passing the impugned order.

G Strong reliance in support of the said contention has been placed on a decision of this court in D An Advocate of the Supreme Court, reported in [I 95S] 2 SCR 1006. The learned counsel would contend that having regard to the fact that the first respondent assaulted the complainant, asked him not to proceed with the case and on the third occasion kicked him as a result whereof he fell H down are clear pointers to the fact that such acts are . not expected of a

N. CHOURARIA v. M.R. MURLI [SINHA, J.] 271

member of a legal profession and, thus, the same must be held to be acts of A misconduct Learned counsel in support of said contention relied upon Hikmat Ali Khan v. /shwar Prasad Arya and Ors., [1997) 3 SCC 131 and NG.

Dastane v. Shrikant S. Shivde and Anr., [2001) 6 SCC 135. Our attention has also been drawn to the preamble of the Bar Council of India Rules.

Mr. T. Raja learned counsel appearing on behalf of the respondents B would, on the other hand, submit that the appellant herein had been harassing the respondent by initiating false cases and in fact the complaint in question against the respondents is the eighth one and no relief had been granted in the other seven complaints. Mr.Raja would urge that it is improbable that if an act of the nature complained of had taken place in a court room, the same C ' would not be brought to the notice of the presiding officer .. Neither any private complaint having been filed nor any proceeding in the criminal courts having been initiated by the appellant herein and further no evidence in support thereof having been produced before the Bar Council, the learned counsel would contend that the impugned orders should not be interfered ~~ro~ D

Misconduct :

Misconduct has not been defined in the Advocates Act, 1961.

Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behaviour intentional wrong doing or deliberate violation of a rule of standard or behaviour'':

Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law.

In Delhi Cloth and General Mills Co. ltd v. Jts Workmen, reported in

(1969) 2 LLJ 755, Shah, J. stated that misconduct spreads over a wide and G hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby.

This Court in State of Punjab and Ors. v. Ram Singh Ex. Constable, reported in [1992) 4 sec 54, noticed:- H

A "5. Misconduct has been defined in Black's Law Dictionary, sixth Edition at Page 999 thus :-

"A Transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, nlawful behaviour, wilful in character, improper or wrong behaviour, it synonyms are B misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness".

Misconduct in offence has been defined as :-

"Any unlawful behaviour by a public officer in relation to the duties C of his office, wilful in character. Tenn embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act".

P. Ramanath Aiyar's Law Lexicon, Reprint Edition, (1987) at Page 821 defines 'misconduct' thus :-

"The term misconduct implies a wrongful intention, and not a mere error of judgment, Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule -of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefmite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official, by which the right of party have been affected."

Thus it could be seen that the word 'misconduct' though not capable of precise of definition, on reflection receives its conotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral H turpitude, it must be improper or wrong behaviour; unlawful behaviour,

N. CHOURARIA v. IV . \!IURLI [SINHA , J.] 273

wilful in character; forbidden act a transgression of established and A definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-manner and the context wherein the term occurs, regard being had to the scope of the statute B and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."

[See also Probodh Kumar Bhowmick v. University o/Calcutta, (1994) C 2 Calcutta Law Journal 456 and B.C. Chaturvedi v. Union of India, [1995) 6 sec 749].

Section 35 of the Advocates Act, however, refers to imposition of punishment for professional or other misconduct. A member of legal profession which is a noble one is expected to maintain a standard in dignified and D determined manner. The standard required to be maintained by the member of the legal profession must be commensurate with the nobility thereof. A Lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer of the court. This Court in Bar Council, Maharashtra v. M V.Dabholkar, AIR [1976) SCC 242 observed:- E

"The high moral tone and the considerable public service the bar is associated with and its key role in the developmental and disputeprocessing activities and, above all, in the building up of a just society and constitutional order has earned for it a monopoly to practise law and an autonomy to regulate its own internal discipline." F

Although the power of the Bar Council is not limited, the thrust of charge must be such which would necessitate initiation qf disciplinary proceedings. A professional or other misconduct committed by a member of the profession should ordinarily be judged qua profession. TO determine the quantum of punishment which may be imposed on an advocate, the test of G proportionality shall be applied which would also depend upon the nature of the acts complained of. No universal rule thus can be laid down as regard initiation of a proceeding for misconduct of a member of the profession.

In 'M' an Advocate (supra), however, this court emphasized the H requirement of maintaining a high standard stating :-

"As has been laid down by this Court in the matter of 'G', a Senior Advocate of the Supreme Court (A) (supra) the Court, in dealing with cases of professional misconduct is "not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to their men and which do not attach even to them in a non-professional character ... he (a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable professional to whose privileges he has so long been admitted; and if he departs from the high standards which that professional has set for itself and demands of him in professional matters, he is liable to disciplinary action."

Application of the principle to the present case :

The disciplinary committee of the Bar Council of India is a statutory D body. At the first instance the duty to arrive at a finding of facts in respect of complaint made against a member of the legal profession is upon it. This court although enjoys extensive and wide jurisdiction under Section 38 of the Act, the opinion of the Bar Council shall carry great weight. The appellant herein had lodged complaint with the State Bar Council on 5.3.1995 in relation E to the 3 incidents allegedly occurred on 8.10.1993, 26.10.1993 and t.3.1995.

The Disciplinary Committee had considered the conduct of the appellant herein in order to judge as to whether the acts on the part of the respondents amount to misconduct.

F There was absolutely no reason as to why the appellant did not make any complaint to the State Bar Council immediately of the incidents which took place on 8.10.1993 and 26.10.1993. If his contention to the effect that in relation to the incident dated 26.10.1993 he had lodged a first information report there was absolutely no reason as to why he did not pursue the same seriously. Itis, as has been noticed by the Bar Council oflndia, accepted that G the police filed final forms but despit~ the same the appellant did not file any protest petition or initiate any other proceeding before criminal court, In relation to the incident dated 1.3.1995 which allegedly took place inside the court room ii was expected of the appellant or his advocate, who is. said to be a retired district judge, to bring the same to the notice of the court. Even H in relation to the incidents allegedly'occurred on 8.l'0.1993'; nd 26.10.1993

N. CHOURARIA v. M.R. MURLI [SINHA, J.] 275

no complaint was made before the presiding officer of the court. No proceeding A was initiated in relation to the purported incident on l.3.1995.

Can in the aforementioned fact situation, the findings of the Bar Council, be said to be so irrational meriting interference by this court is the question?

We are of the opinion that it is not. We may further place on record that on a querry made by us to Mr. Upadhyay as to whether any other incident had B taken place after l.3.1995, the learned counsel categorically stated that no such incident had thereafter taken place. We are, therefore, of the opinion that the matter need not be pursued further.

Case Laws: c

Let us now consider the decision of this court cited at the Bar. In 'M' an Advocate (supra), this court was dealing with a case where an advocate who had been appearing in person had been an accused before a magistrate where his conduct was found to be such which amounted to commission of professional misconduct. He continuously and persistently attempted to hold D up the trial and did everything in his power to bring the administration of justice in contempt. In the aforementioned fact-situation, it was held that the High Court was right in taking action against the advocate concerned.

In Hikmat Ali Khan v. /shwar Prasad Arya, (1997) 3 SC 131 the concerned advocate assaulted his opponents with a knife. He was prosecuted E and found guilty of commission of an offence under Section 307 of the IPC.

In the aforementioned situation, it was held that the advocate deserves the extraordinary punishment of removal of his name from the state rolls of advocates.

In N.G. Dastane v. Shrikant S. Shivde and Anr., (2001) 6 SC 135 an F advocate in order to defend one of the accused persons before a magistrate sought for adjournments repeatedly and on 4.12.1993 an adjournment was sought on the premise that he was unable to speak on account of a throat infection and continuous cough but the complainant came across the said advocate "forcefully and fluently" arguing a matter before another court G situated in the same building. Thereafter a complaint was lodged wherein a prime facie case was found to have been made out. This court directed the Bar Council of India to deal with the complaint.

The aforesaid decisions of this court are not applicable to the fact of the . present case.

A Conclusion :

We are, therefore, of the opinion that no case has been made out for interfering with the impugned order.

This appeal is dismissed. But in the facts of the case there shall be no B order as to costs.

S.K.S.

Appeal dismissed.

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