Case ID: 3892

Judgment:
Civil Appeal No. 839 of 1978. From the Judgment and Order dated 11 3 1978 of the Disciplinary Committee of the Bar Council of India	 New Delhi D.C. Appeal No. 14/75. G. L. Sanghi and A. T. M. Sampath for the Appellant. Nemo for the Respondent. The following Judgments were delivered KRISHNA IYER	 J. We agree wholly with our learned brother Sen	 J.	 that the appellant is guilty of gross professional misconduct and deserves condign punishment. But conventional penalties have their punitive limitations and flaws	 viewed from the reformatory angle. A therapeutic touch	 a correctional twist	 and a locus penitentiae	 may have rehabilitative	 impact	 if only we may experiment unorthodoxly but within the parameters of the law. Oriented on this approach and adopting the finding of guilt	 we proceed to consider the penalty	 assuming the need for innovation and departing from wooden traditionalism. A middle aged man	 advocate by profession	 has grossly misconducted himself and deceived a common client. Going by precedent	 the suspension from practice for one year was none too harsh. Sharp practice by members of noble professions deserves even disbarment. The wages of sin is death. 1058 Even so	 justice has a correctional edge	 a socially useful function	 especially when the delinquent is too old to be pardoned and too young to be disbarred. Therefore	 a curative	 not cruel punishment has to be designed in the social setting of the legal profession. Law is a noble profession	 true; but it is also an elitist profession. Its ethics	 in practice	 (not in theory	 though) leave much to be desired	 if viewed as a profession for the people. When the constitution under Article 19 enables professional expertise to enjoy a privilege and the confers a monopoly	 the goal is not assured income but commitment to the people whose hunger	 privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. This desideratum gives the clue to the direction of the penance of a devient geared to correction. Serve the people free and expiate your sin	 is the hint. Law 's nobility as a profession lasts only so long as the member maintain their commitment to integrity and service to the community. Indeed	 the monopoly conferred on the legal profession by Parliament is coupled with a responsibility a responsibility towards the people	 especially the poor. Viewed from this angle	 every delinquent who deceives his common client deserves to be frowned upon. This approach makes it a reproach to reduce the punishment	 as pleaded by learned counsel for the appellant. But	 as we have explained at the start	 every punishment	 however	 has a functional duality deterrence and correction. Punishment for professional misconduct is no exception to this 'social justice ' test. In the present case	 therefore	 from the punitive angle	 the deterrent component persuades us not to interfere with the suspension from practice reduced 'benignly ' at the appellate level to one year. From the correctional angle	 a gesture from the Court may encourage the appellant to turn a new page. He is not too old to mend his ways. He has suffered a litigative ordeal	 but more importantly he has a career ahead. To give him an opportunity to rehabilitate himself by changing his ways	 resisting temptations and atoning for the serious delinquency	 by a more zealous devotion to people 's causes like legal aid to the poor	 may be a step in the correctional direction. Can these goals be accommodated within the scheme of the statute? Benignancy beyond the bounds of law are not for judges to try. 1059 Speaking frankly	 Sec. 35(3) has a mechanistic texture	 a set of punitive pigeon holes	 but we may note that words grow in content with time and circumstance	 that phrases are flexible in semantics	 that the printed text is a set of vessels into which the court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense which the times demand and the text does not countermand. That court is superficial which stops with the cognitive and declines the creative function of construction. So	 we take the view that 'quarrying ' more meaning is permissible out of Sec. 35(3) and the appeal provisions	 in the brooding background of social justice	 sanctified by article 38	 and of free legal aid enshrined by article 39A of the Constitution. "A statute rarely stands alone. Back of Minerva was the brain of Jove	 and behind Venus was the spume of the ocean." (The Interpretation and Application of Statutes Read Dickerson p. 103) Back to the Act. 35(3) reads: "The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate General an opportunity of being heard	 may make any of the following orders	 namely: (a) dismiss the complaint or	 where the proceedings were initiated at the instance of the State Bar Council	 direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. 37 provides an appeal to the Bar Council of India. It runs: 37(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made (under section 35) (or the Advocate General of the State) may	 within sixty days of the date of the communication of the order to him	 prefer an appeal to the Bar Council of India. 1060 (2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order (including an order varying the punishment awarded by the disciplinary committee of the State Bar Council) thereon as it deems fit. Section 38 provides a further	 final appeal to the Supreme Court in these terms: "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." Section 35(3) (c) enables suspensions of the advocate whether conditionally or absolutely	 it is left unclear. Section 37 (2) empowers the Bar Council of India widely to 'pass such order as it deems fit. ' And the Supreme Court	 under Sec. 38 enjoys ample and flexible powers to 'pass such order. as it deems fit '. Wide as the power may be	 the order must be germane to the Act and its purposes	 and latitude cannot transcend those limits. Judicial 'Legisputation ' to borrow a telling phrase of J. Cohen	 is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense	 'interpretation is inescapably a kind of legislation '. This is not legislation stricto sensu but application	 and is within the court 's province. We have therefore sought to adapt the punishment of suspension to serve two purposes injury and expiation. We think the ends of justice will be served best in this case by directing suspension plus a provision for reduction on an undertaking to this court to serve the poor for a year. Both are orders within this court 's power. 1061 Tamil Nadu has a well run free legal aid programme with which the Governor and Chief Justice of the State are associated. The State Legal Aid Board	 working actively with two retired Judges of the High Court at the head	 may use the services of the appellant keeping a close watch on his work and relations with poor clients	 if he applies to the Legal Aid Board for giving him such an opportunity	 after getting this court 's order as provided below. Independently of that	 as a token of our inclination to allow the appellant to become people minded in his profession	 we reduce the suspension from practice upto the 14th of August 1979. With the next Independence Day we hope the appellant will inaugurate a better career and slough off old bad habits. If the appellant gives an undertaking that he will work under any official legal aid body in Tamil Nadu and convinces the Chairman of the State Legal Aid Board	 Tamil Nadu	 to accept his services in any specific place where currently there is an on going project	 produces a certificate in this behalf from the Board	 and gives an undertaking to this Court that he will do only free legal aid for one year as reasonably directed by the Board (and shall not	 during that period	 accept any private engagement)	 his period of suspension shall stand terminated with effect from January 26	 1979. As a condition precedent to his moving this court he must pay (and produce a receipt) Rs. 2	500/ to the victim of the misconduct. Atonement cannot be by mere paper pledges but by actual service to the people and reparation for the victim. That is why we make this departure in the punitive part of our order. Innovation within the frame work of the law is of the essence of the evolutionary process of juridical development. From that angle	 we think it proper to make a correctional experiment as a super addition to punitive infliction. Therefore	 we make it clear that our action is less a precedent than a portent. With the modification made above	 we dismiss the appeal. SEN	 J. This appeal under section 38 of the by V. C. Rangadurai is directed against an order of the Disciplinary Committee of the Bar Council of India dated March 11	 1978 upholding the order of the Disciplinary Committee II of the State Bar Council	 Madras dated May 4	 1975 holding him guilty of professional misconduct but reducing the period of suspension from practice to one year from six years. There can be no doubt that the appellant had duped the complainants	 T. Deivasenapathy	 an old deaf man aged 70 years and his aged wife Smt. D. Kamalammal by not filing the suits on two 1062 promissory notes for Rs. 15	000/ and Rs. 5	000/ both dated August 26	 1969 executed by their land lady Smt. Parvathi Ammal	 who had borrowed Rs. 20	000/ from them	 by deposit of title deeds. Admittedly	 though the plaint for recovery of the amount due on the promissory note for Rs. 15	000/ with interest thereon bearing court fee of Rs. 1	519.25 was returned for presentation to the proper court	 it was never re presented. It is also not denied that though the appellant had drafted the plaint for recovery of Rs. 5	000/ with interest no such suit was ever filed. In spite of this	 the appellant made false representations to the complainants Deivasenapathy (P.W. 1)	 his wife Smt. Kamalammal (P.W. 3) and the power of attorney agent of the complainants	 D. Gopalan (P.W. 2) that the suits had been filed and were pending	 gave them the various dates fixed in these two suits	 and later on falsely told them that the court had passed decrees on the basis of the two promissory notes. On the faith of such representation the complainants served a lawyer 's notice dated December 25	 1973 (Ext. P 3) on the debtor Smt. Maragathammal	 to the effect: "That you are aware of my clients ' filing two suits against you for recovery of Rs. 15	000/ and Rs. 5	000/ with due interest and cost thereon and it is not to state that both the suits were decreed as prayed for by my clients in the court proceedings. My clients further say that in spite of the fact that the suits had been decreed long ago you have not chosen to pay the amount due under the decrees in question and on the other hand trying to sell the property by falsely representing that the original documents have been lost to the prospective buyers. My clients further state that you are aware of the fact that my clients are in possession of the original documents relating to the property bearing door No. 41 Shaik Daood Street	 Royapeeth	 Madras 14	 but deliberately made false representation as aforesaid with the mala fide intention to defeat and defraud my clients ' amounts due under the decree. My clients emphatically state that you cannot sell the property in question without disclosing the amounts due to them. .". 1063 It would thus appear that acting on the representations made by the appellant	 the complainants called upon the debtor Smt. Maragathammal to pay the amount due under the decrees failing which they had instructed their lawyer to bring the property to sale. Actually no such suits had in fact been filed nor any decrees passed. It is argued that the finding as to professional misconduct on the part of the appellant reached by the Disciplinary Committee of the Bar Council of India is not based on any legal evidence but proceeds on mere conjectures. It is pointed out that the ultimate conclusion of the Disciplinary Committee cannot be reconciled with its earlier observation that it was not prepared to attach any credence to the conflicting assertion of Deivasenapathy that he had at first handed over Rs. 855/ on December 2	 1970 for filing the suit on the promissory note for Rs. 5	000/ and then paid Rs. 2	555/ some time in July 1972 for filing the suit on the promissory note for Rs. 15	000/ which is in conflict with the allegation in the lawyer 's notice dated February 21	 1974 (Ext. R 1) that a sum of Rs. 3	410/ was paid on July 17	 1972 to wards court fees and expenses for the filing of the two suits	 or that the various dates marked in the copies of the two plaints	 Ext. P 1 and Ext. P 2	 were indeed given by him. It is urged that the Disciplinary Committee was largely influenced by the fact that the appellant gave the receipt	 Ext. R 7 to K.S. Lakshmi Kumaran	 which was found to be forged. In view of the discrepancies in the testimony of Deivasenapathy	 P.W. 1	 Smt. Kamalammal	 P.W. 3 and their agent	 D. Gopalan	 P.W. 2	 it was evident that the Disciplinary Committee mainly based the charge of misconduct on mere suspicion. Lastly	 it is said that the complaint was a false one and was an attempt to pressurize the appellant to persuade his client Smt. Maragathammal to sell the house to the complainants. We are afraid	 the contentions cannot be accepted. In denial of the charge the appellant pleaded that though he had drafted the plaint in the suit to be filed on the basis of the promissory note for Rs. 5	000/ 	 he felt that as the debtor Smt. Maragathammal had consulted him in another matter	 it would be better that the complainants engaged some other counsel and he advised them accordingly. He suggested the names of two or three lawyers out of whom	 the complainants engaged K. section Lakshmi Kumaran. He denied that the two promissory notes were handed over to him or that he had received any amount by way of court fees or towards his fees. According to him	 K.S.Lakshmi Kumaran was	 therefore. instructed to file the suits. K. section Lakshmi Kumaran	 on the other hand	 pleaded that he knew nothing about the suits but had in fact signed the Vakalat as a Junior 1064 counsel	 as a matter of courtesy at the behest of the appellant. He pleaded that he had never met the complainants nor had he been instructed by them to file the suits. He further pleaded that when the complainants served him with their lawyer 's notice dated February 11	 1974	 Ext. R 11	 he went and saw the appellant who told him that he had returned the plaint	 which was returned by the court	 together with all the documents to the complainant Deivasenapathy as per receipt	 Ext. On February 21	 1974 the complainants served another lawyer 's notice on both the appellant and K. section Lakshmi Kumaran. The appellant and K. section Lakshmi Kumaran sent their replies to this notice. The appellant 's reply	 Ext. R 2	 was practically his defence in the present proceedings. K. section Lakshmi Kumaran in his reply	 Ext. R 5	 refers to the lawyer 's notice	 Ext. R 11	 sent by the complainants earlier and states that when he took the notice to the appellant	 he told him that the papers were taken back from him by the complainant Dievasenapathy who had passed on to him a receipt. The Disciplinary Committee	 in its carefully written order	 has marshalled the entire evidence in the light of the probabilities and accepted the version of K. section Lakshmi Kumaran to be true. It observes: "Earlier we referred to the conflict between the two advocates. We cannot help observing that we feel there is want of candour and frankness on the part of RD. On a careful consideration of the evidence we see no reason to reject the evidence of L that he merely signed the Vakalat and plaint and when the plaint was returned he took the return and passed on the papers to RD. " It then concludes stating: "On an overall view of the evidence we hold that L was not directly engaged by the parties and that when the plaint with its annexures was returned	 L passed it on to RD. We also accept L 's evidence that when on receipt of the notice Ext. R 11 he met RD he was informed that the case papers were taken back by P.W. 1 and that some time afterwards RD gave him the receipt Ext. R 7. . . It must be	 that when the complainants turned against RD suspecting his bona fide he denied having had anything to do in the matter and threw up his junior colleague in the profession stating that he passed the clients no to L and had nothing more to do with the case. As the clients had no direct contact with L his statement that he handed over the 1065 plaint on its return to RD looks probable and likely. We accept it. When a notice was issued to him in the matter he went to RD and RD gave him the receipt Ext. The receipt purports to be signed by Deivasenapathy and accepted it for what it was worth. " In that view	 both advocates were found guilty of professional misconduct	 but differing in character and different in content. In dealing with the question	 it observes: "As regards RD	 the litigants entrusted the briefs to him whatever their motive. The record does not establish that before entrusting the case to L the complainants were introduced by RD to L and L was accepted by them as counsel in charge of the case. " It condemned both the advocates for their dereliction of duty	 but only reprimanded K. section Lakshmi Kumaran	 the junior advocate	 because he never knew the complainants and had signed the vakalat at the bidding of the appellant	 but took a serious view of the misconduct of the appellant	 and castigated his whole conduct in no uncertain terms	 by observing: "Finding himself in difficulties RD miserably failed in his duty to his fellow advocate very much junior to him in the profession and who trusted him. The conduct of a lawyer to his brothers in the profession must be characterised by candour and frankness. He must keep faith with fellow members of the bar. While quite properly RD did not accept the engagement himself we are of the view that he has been party to the institution of a suit tended merely to harass the defendants in the suit	 with a view to secure some benefit for the other party manifestly unprofessional. " It went on to observe: "The only casualty is RD 's professional ethics in what he might have thought was a gainful yet good samaritan move. When the move failed and there was no likelihood of his success	 the complainants turned against him securing for their help their power of attorney. Then fear psychosis appears to have set in	 leading RD to totally deny his involvement in the plaint that was filed and let down the junior whose assistance he sought. We see no other probability 1066 out of the tangled web of exaggerations	 downright denials	 falsehood and fabrications mingled with some truth. " May be	 the complainants were not actuated from a purely altruistic motive in lodging the complaint but that does not exonerate the appellant of his conduct. The suggestion that the complaint was false one and constituted an attempt at blackmail is not worthy of acceptance. The property was actually sold to M. M. Hanifa for Rs. 36	000 by registered sale deed dated August 1	 1974	 while the complaint was filed in April 1974. We do not see how the initiation of the proceedings would have pressurised the appellant to compel his client Smt. Maragathammal to part with the property for Rs. 20	000/ the price offered by the complainants. It is no doubt true that at one stage they were negotiating for the purchase of the house of which they were the tenants but the price offered by them was too low. The Disciplinary Committee of the Bar Council of India summoned the purchaser and he stated that from December 1973	 he had been trying to purchase the property. It is also true that in response to the notice dated August 1	 1974 served by the purchaser asking the complainants to attorn to him	 they in their reply dated August 8	 1974 expressed surprise that he should have purchased the property for Rs. 36	000/ when in fact it was not worth more than Rs. 26	000/ It matters little whether the amount of Rs. 3	410/ was paid to the appellant in a lump sum or in two instalments. Deivasenapathy	 P.W. 1 faltered when confronted with the notice Ext. R 1 and the Disciplinary Committee of the Bar Council of India has adversely commented on this by saying that he is not 'an illiterate rustic ' but is an M.I.S.E.	 a retired Civil Engineer. This by itself does not disapprove the payment of the amount in question. It may be the general power of attorney	 D. Gopalan	 P.W. 2	 made a mistake in instructing the counsel in giving the notice. As regards the various dates appearing on the copies of the two plaints	 Exts. P 1 and P 2	 the complainants could not have got these dates by themselves unless they were given by the appellant. In an appeal under section 38 of the Act	 this Court would not	 as a general rule	 interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and of the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjecture and unwarranted inferences. This is not the case here. Under the scheme of the Act	 the disciplinary jurisdiction vests with the State Bar Council and the Bar Council of India. Disciplinary 1067 proceedings before the State Bar Council are sui ceneris	 are neither civil nor criminal in character	 and are not subject to the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire	 for the protection of the public	 the courts and the legal profession	 into fitness of the subject to continue in the capacity of an advocate. Findings in disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits	 yet falling short of the proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly fulfilled in the instant case. When 'a lawyer has been tried by his peers '	 in the words of our brother Desai J.	 there is no reason for this Court to interfere in appeal with the finding in such a domestic enquiry merely because on a reappraisal of the evidence a different view is possible. In the facts and circumstances of the case	 we are satisfied that no other conclusion is possible than the one reached. There is	 therefore	 no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India. It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or part of the hearing)	 and conduct the case as if the latter had himself been briefed	 unless the client consents to this course being taken. Council 's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists	 his duty is to advise the client that he should engage some other lawyer. It is unprofessional to represent conflicting interests	 except by express consent given by all concerned after a full disclosure of the facts. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity	 honesty and integrity of the profession. Lord Brougham	 then aged eighty six	 said in a speech	 in 1864	 that the first great quality of an advocate was 'to reckon everything subordinate to the interests of his client '. What he said in 1864 about 'the paramountcy of the client 's interest '. is equally true today. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate	 exacting	 and confidential character requiring a high degree of fidelity and good faith. It is purely a personal relationship	 involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when entrusted with a brief	 is expected to follow the norms of professional ethics and try to protect the interests of his clients	 in relation to whom he occupies a position of trust. The 1068 appellant completely betrayed the trust reposed in him by the complainants. It is needless to stress that in a case like this the punishment has to be deterrent. There was in this case complete lack of candour on the part of the appellant	 in that he in a frantic effort to save himself	 threw the entire blame on his junior	 K. section Lakshmi Kumaran. The evidence on record clearly shows that it was the appellant who had been engaged by the complainants to file suits on the two promissory notes for recovery of a large sum of Rs. 20	000/ with interest due thereon. There was also complete lack of probity on the part of the appellant because it appears that he knew the debtor	 Smt. Maragathammal for 7/8 years and had	 indeed	 been appearing for her in succession certificate proceedings. If there was any conflict of interest and duty	 he should have declined to accept the brief. What is reprehensible is that he not only accepted the brief	 pocketed the money meant for court fees	 and never filed the suits. The appeal for mercy appears to be wholly misplaced. It is a breach of integrity and a lack of probity for a lawyer to wrongfully withhold the money of his client. In a case of such grave professional misconduct	 the State Bar Council observes that the appellant deserved the punishment of disbarment	 but looking to his young age	 only suspended him from practice for a period of six years. The Disciplinary Committee of the Bar Council of India has already taken a lenient view and reduced the period of suspension from six years to one year	 as in its view the complainants did not suffer by the suits not being proceeded with because even if they had obtained decrees for money	 they would still have been required to file a regular mortgage suit for the sale of the property charged. In the facts and circumstances of the case	 I am of the view that the punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further interference. I have had the advantage of reading the judgment of my learned brother Krishna Iyer for the restitution to the appellant of his right to practice upon fulfilment of certain conditions. I have my own reservations in the matter	 that is	 whether any such direction should at all be made in the present case. Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client	 or that the wrong was committed or aided by means of false representations	 fraud or deceit	 as here	 the fact that the advocate makes restitution to 1069 or settlement with the client will not prevent disbarment	 especially where restitution was not made until after the commencement of the disciplinary proceedings. It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation	 particularly when the repayment is made under pressure. When there is disbarment or suspension from practice	 the lawyer must prove	 if he can	 after the expiration of a reasonable length of time	 that he appreciates the significance of his dereliction	 that he has lived a consistent life of probity and integrity	 and that he possesses the good character necessary to guarantee uprightness and honour in his professional dealings	 and therefore is worthy to be restored. The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions. There is nothing of the kind in the present case. Further	 even if this Court has the power to make such a direction. in terms of section 38	 the Court has a duty to act with justice to the profession and the public as well as the appellant seeking reinstatement	 and without regard to mere feelings of sympathy for the applicant. Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement. I also doubt whether a direction can be made requiring the advocate to undertake free legal aid during the period of his suspension. This would be a contradiction in terms. Under section 35(4)	 when an advocate is suspended from practice under cl.(c) of sub section (3) thereof	 he shall	 during the period of suspension	 be debarred from practising in any court or before any authority or person in India. If the making on such a direction implies the termination of the order of suspension	 on the fulfilment of the conditions laid down	 I am of the considered view that no restriction on the right of the advocate to appear before any court or authority	 which privilege he enjoys under section 30 of the Act	 can be imposed. The taking	 of too lenient a view in the facts and circumstances of the case	 I feel	 would not be conducive to the disciplinary control of the State Bar Councils. I would	 for these reasons	 dismiss the appeal and maintain the punishment imposed on the appellant. In conclusion	 I do hope the appellant will fully reciprocate the noble gesture shown to him by the majority	 come up to their expectations and turn a new leaf in life. It should be his constant endeavour to keep the fair name of the great profession to which he belongs unsullied. S.R. Appeal dismissed.

Summary:
The appellant was found guilty of gross professional misconduct by the Disciplinary Committee II of the State Bar Council	 Tamil Nadu and was therefore	 debarred from practice as an Advocate for a period of six years. In appeal	 the Bar Council of India upheld the said findings but reduced the period of suspension to one year. Dismissing the appeal	 the Court Per Iyer	 J. (on behalf of Desai	 J. and himself) ^ HELD: 1. Punishment has a functional duality deterrence and correction. But conventional penalties have their punitive limitations and flaws	 viewed from the reformatory angle. A therapeutic touch	 a correctional twist	 and a locus penitentiae	 may have rehabilitative impact if only Courts may experiment unorthodoxly but within the parameters of the law. [1057 F G; 1058 E] When the Constitution under article 19 enables professional expertise to enjoy a privilege and the confers a monopoly	 the goal is not assured income but commitment to the people whose hunger	 privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. [1058 B C] Justice has correctional edge a socially useful function especially when the delinquent is too old to be pardoned and too young to be disbarred. Therefore	 a curative not cruel punishment has to be designed in the social setting of the legal profession. Punishment for professional misconduct is no exception to this 'social justice ' test. [1058 A	 E] In the present case	 therefore	 the deterrent component of the punitive imposition persuades non interference with the suspension from practice reduced 'benignly at the appellate level to one year. From the correctional angle a gesture from the Court may encourage the appellant to turn a new page. He is 1055 not too old to mend his ways. He has suffered a litigative ordeal	 but more importantly he has a career ahead. To give him an opportunity to rehabilitate himself by changing his ways	 resisting temptations and atoning for the serious delinquency	 by a more zealous devotion to people 's cause like legal aid to the poor may be a step in the correctional direction.[1058 E G] 2. Judicial legislation is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense	 interpretation is inescapably a kind of legislation. Legislation is not legislation stricto sensu but application and is within the Court 's province. So viewed the punishment of suspension under Sec. 35(3) of the serves two purposes injury and expiation. The ends of justice will be served best in this case by directing suspension plus a provision for reduction on an undertaking to this Court to serve the poor for a year. Both are orders within this Court 's power [1060 F H] 3. Section 35(3) has a mechanistic texture	 a set of punitive pigeon holes	 but words grow in content with time and circumstance	 that phrases are flexible in semantics and the printed text is a set of vessels into which the Court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense which the times demand and the text does not countermand. That Court is superficial which stops with the cognitive and declines the creative function of construction. 'Quarrying ' more meaning is permissible out of Sec. 35(3) and the appeal provisions in a brooding background of social justice sanctified by article 38 and of free legal aid enshrined by article 39A of the Constitution. [1059 A B] Per Sen (J) In an appeal under Sec. 38 of the the Supreme Court would not	 as a general rule interfere with the concurrent findings of fact by the Disciplinary Committee	 Bar Council of India and the State Bar Council unless the findings is based on no evidence or it proceeds on mere conjecture and unwarranted inferences. [1066 G H] When 'a lawyer has been tried by his peers ' the Supreme Court cannot interfere in an appeal with the finding in such a domestic enquiry merely because on a re appraisal of the evidence a different view is possible. In the facts and circumstances of the case	 no other conclusion is possible than the conclusion reached. There is	 therefore no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India. [1067 C D] 2. Disciplinary proceedings before the State Bar Council are sui generis	 are neither civil nor criminal in character and are not subject to the ordinary criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire	 for the protection of the public	 the Courts and the legal profession into fitness of the subject to continue in the capacity of an advocate. Findings in disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits	 yet falling short of the proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence. That test is clearly fulfilled in the instant case. [1067 A B] 3. It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or 1056 part of the hearing)	 and conduct the case as if the latter had himself been briefed	 unless the client consents to this course being taken. Counsel 's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists	 his duty is to advise the client that he should engage some other lawyer. It is unprofessional to represent conflicting interests	 except by express consent given by all concerned after a full disclosure of the facts. [1067 D E] In the instant case	 if there was any conflict of interest and duty the appellant should have declined to accept the brief. What is reprehensible is that he not only accepted the brief	 pocketed the money meant for court fees	 and never filed the suits but in a frantic effort to save himself	 he threw the entire blame on his junior. [1068 B C] Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity	 honesty and integrity of the profession. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate	 exacting	 and confidential character requiring a high degree of fidelity and good faith. It is purely a personal relationship	 involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when entrusted with a brief	 is expected to follow the norms of professional ethics and try to protect the interests of his clients	 in relation to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants in this case. [1067 F	 G H; 1068 A] 4. The punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further interference. In a case like this	 the punishment has to be deterrent. Any appeal for mercy is wholly misplaced. It is a breach of integrity and a lack of probity for a lawyer to wrongfully with hold the money of his client and there was in this case complete lack of candour on the part of the appellant. [1068 D	 F] (per contra) (a) Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client	 or that the wrong was committed or aided by means of false representations	 fraud or deceit	 the fact that the advocate makes restitution to or settlement with the client will not prevent disbarment especially where restitution was not made until after the commencement of the disciplinary proceedings. It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation particularly when the repayment is made under pressure. [1068 H	 1069 A] (b) When there is disbarment or suspension from practice	 the lawyer must prove	 if he can	 after the expiration of a reasonable length of time	 that he appreciates the significance of his dereliction	 that he possesses the good character necessary to guarantee uprightness and honour in his professional dealings	 and therefore is worthy to be restored. The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions. There is nothing of the kind in the present case. Even if the Supreme Court has the power to make such a direction	 in terms of section 38	 the Court has a duty to act with justice to the profession and the public as well as the appellant seeking reinstatement	 and without regard to mere feelings of sympathy for the applicant. Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement. [1068 B D] 1057 (c) A direction requiring the advocate to undertake free legal aid during the period of his suspension would be a contradiction in terms. Under section 35(4)	 when an advocate is suspended from practice under cl. (c) of sub section (3) thereof	 he shall	 during the period of suspension be debarred from practising in any court or before any authority or person in India. If the making of such a direction implies the termination of the order of suspension	 on the fulfilment of the conditions laid down	 no restriction on the right of the advocate to appear before any Court or authority	 which privilege he enjoys under section 30 of the Act	 can be imposed.[1069 D F] The Court directed: (i) the appellant to pay a sum of Rs. 2	500/ to the victim of the misconduct and produce a receipt (ii) give an undertaking as directed viz.	 accepting the suspension from practice upto 14th August 1979 and willingness to undertake work under any legal aid body in Tamil Nadu and convince the Chairman of that Board to accept his services in any specific place where currently there is an on going project	 produce a certificate in this behalf from the Board and (iii) agree to do only free legal and for one year as reasonably directed by the Board (and shall not during that period accept any private engagement) so that the period of suspension shall stand terminated with effect from January 26	 1979. [1061 A D]