Saturday, 18 February 2017

Whether mere negligence or error of judgment on part of Advocate will amount to professional misconduct?

The present appeal preferred under Section 38 of the
Advocates Act, 1961 (for brevity, 'the Act') assails the
correctness of the order dated 15.10.2006 passed by the
Disciplinary Committee of the Bar Council of India in BCI
TR Case No.138 of 2005 whereby the said authority has
found the appellant guilty of gross negligence in discharge of
his professional service to the client and accordingly
imposed the punishment of reprimand with a further
stipulation that he shall pay a sum of Rs.5,000/- to the Bar
Council of India and an equivalent amount to the
complainant within two weeks' time from the date of receipt
of the order failing which he would stand suspended from
practising for a period of six months.
2. As the factual score would unroll, the
respondent-complainant engaged the appellant as advocate
in respect of a matrimonial dispute and during the
pendency of the matrimonial case, the wife of the
respondent breathed her last due to kidney failure in the
year 2002. The appellant advised the
complainant-respondent that as the wife had expired, there
was no justification to prosecute any further the case for
divorce and it was advisable to withdraw the said litigation.
In the meantime, the respondent engaged him to file a
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one
Ramachandran in favour of the respondent for a sum of
Rs.75,000/- (Rupees seventy five thousand only) had been
dishonoured. It is not in dispute that the appellant thought
it appropriate not to file a complaint under the N.I. Act but
he felt it apposite to file a complaint case before the
competent Magistrate under Section 420 of the Indian Penal
Code and accordingly he did so. As is demonstrable, the
learned Magistrate directed investigation to be conducted
under Section 156(3) of the Code of Criminal Procedure.
The eventual result of the said investigation has not been
brought on record.
It is urged by Mr. Parikh that when no finding is
returned that the cheque was kept back by the appellant,
there is no gross negligence. On the contrary, as he would
submit, it was handed over to the investigating agency
which was directed by learned Magistrate to carry out the
investigation under Section 156(3) CrPC. His only fault is
that he could not get the acknowledgment.
The Constitution Bench, in the matter of Mr. 'P' an
Advocate, (supra) has ruled that mere negligence or error of
judgment on the part of an advocate would not amount to
professional misconduct. It has been further held therein
that error of judgment cannot be completely eliminated in
all human affairs and mere negligence may not necessarily
show that the advocate who is guilty of it can be charged
with misconduct. The Constitution Bench, as is
demonstrable, has drawn a distinction between 'negligence'
and the 'gross negligence'. We think it appropriate to
reproduce the said passage. It is as follows:-
“But different considerations arise where the
negligence of the Advocate is gross. It may be that
before condemning an Advocate for misconduct,
courts are inclined to examine the question as to
whether such gross negligence involves moral
turpitude or delinquency. In dealing with this
aspect of the matter, however, it is of utmost
importance to remember that the expression
"moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or
opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A
willful and callous disregard for the interests of
the client may, in a proper case, be characterised
as conduct unbefitting an Advocate. In dealing
with matters of professional propriety, we cannot
ignore the fact that the profession of law is an
honourable profession and it occupies a place of
pride in the liberal professions of the country.
Any conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes
an Advocate unfit to be entrusted with the
responsible task of looking after the interests of
the litigant, must be regarded as conduct
involving moral turpitude. The
Advocates-on-record like the other members of
the Bar Advocates are Officers of the Court and
the purity of the administration of justice
depends as much on the integrity of the Judges
as on the honesty of the Bar. That is why in
dealing with the question as to whether an
Advocate has rendered himself unfit to belong to
the brotherhood at the Bar, the expression "moral
turpitude or delinquency" is not to be construed
in an unduly narrow and restricted sense.”10
[Emphasis Supplied]
16. Ms. K. Sarda Devi, learned counsel for the respondent,
per contra, would urge that the case of the respondent is
squarely covered by the dictum of the Constitution Bench
inasmuch as the Disciplinary Committee of the Bar Council
of India has held that there was gross-negligence on the
part of the appellant.
17. On a studied scrutiny of the evidence in this context,
the factual score, the act of the present appellant cannot be
treated to be in the realm of gross negligence. It would be
only one of negligence. The tenor of the impugned order, as
we notice, puts the blame on the appellant on the
foundation that he had not received the acknowledgment.
He has offered an explanation that he had given the cheque
to the police. There has been no delineation in that regard.
That apart, there is no clear cut analysis on deliberation on
gross negligence by the advocate. The Disciplinary
Committee found the appellant guilty of gross-negligence as
he had failed to get the acknowledgment from the
complainant-respondent. The examples given by the
Constitution Bench are of different nature. In the obtaining
factual matrix, therefore, we are unable to accept the
conclusion arrived at by the Disciplinary Authority of the
Bar Council of India that the negligence is gross. Hence we
are impelled not to accept the submission advanced by
learned counsel for the respondent.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3860 OF 2007
T.A. KATHIRU KUNJU 
 V
JACOB MATHAI & ANR
Dated:February 16, 2017.
Citation: AIR 2017 SC 1041

The present appeal preferred under Section 38 of the
Advocates Act, 1961 (for brevity, 'the Act') assails the
correctness of the order dated 15.10.2006 passed by the
Disciplinary Committee of the Bar Council of India in BCI
TR Case No.138 of 2005 whereby the said authority has
found the appellant guilty of gross negligence in discharge of
his professional service to the client and accordingly
imposed the punishment of reprimand with a further
stipulation that he shall pay a sum of Rs.5,000/- to the Bar
Council of India and an equivalent amount to the
complainant within two weeks' time from the date of receipt
of the order failing which he would stand suspended from
practising for a period of six months.
2. As the factual score would unroll, the
respondent-complainant engaged the appellant as advocate
in respect of a matrimonial dispute and during the
pendency of the matrimonial case, the wife of the
respondent breathed her last due to kidney failure in the
year 2002. The appellant advised the
complainant-respondent that as the wife had expired, there
was no justification to prosecute any further the case for
divorce and it was advisable to withdraw the said litigation.
In the meantime, the respondent engaged him to file a
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one
Ramachandran in favour of the respondent for a sum of
Rs.75,000/- (Rupees seventy five thousand only) had been
dishonoured. It is not in dispute that the appellant thought
it appropriate not to file a complaint under the N.I. Act but
he felt it apposite to file a complaint case before the
competent Magistrate under Section 420 of the Indian Penal
Code and accordingly he did so. As is demonstrable, the
learned Magistrate directed investigation to be conducted
under Section 156(3) of the Code of Criminal Procedure.
The eventual result of the said investigation has not been
brought on record.
3. At this stage, the respondent filed a complaint before
the Bar Council of Kerala, principally alleging that the
cheque that was handed over to the appellant to initiate
criminal action against Ramachandran under Section 138 of
the NI Act was not returned to him. On the basis of
complaint received, a disciplinary proceeding was initiated
against him and eventually the Disciplinary Committee
issued a memo of charges on the appellant. It is seemly to
reproduce the same :-
“MEMO OF CHARGES
“That Sri Jacob Mathai, Kachirackal House,
Marampally, Always entrusted with you to file a
case under the provisions of Negotiable
Instruments Act against Sri. Ramachandran,
Nedumpally House, Marampally for bouncing of
cheque dated 04.09.2002; and that you have not
filed the case under N I Act; and that the
Thandiyittaparambu police station directed the
complainant to produce the said cheque to the
said police, but you didn't return it so far; and
you did it so on the offer of the said
Ramachandran to pay you Rs.10,000/- and
thereby you had committed professional and4
other misconduct punishable u/s 35 of the
Advocats Act, 1961.”
4. The said memo of charges is dated 22.8.2004. As the
Disciplinary Committee of the Bar Council of Kerala could
not complete the proceeding within a span of one year, the
matter stood transferred to Bar Council of India where it
was registered as BCI TR Case No.138 of 2005. Before the
Disciplinary Committee, the complainant examined himself
and asserted that the appellant was under legal obligation
to file the complaint under Section 138 of the NI Act and
further, he was obligated to return the cheque. The
appellant, in the cross examination before the Disciplinary
Committee, stated that he was entrusted with the original
cheque along with the photostat copies and the original
cheque was handed over to the investigating agency when
the investigation commenced in pursuance of the direction
issued under Section 156(3) Cr.P.C. by the learned
Magistrate. The Disciplinary Committee adverted to the
facts and held as follows :-
“But, however, the Advocate in his professional
capacity while discharging the duties is to be
doubly careful in dealing such matters.
According to his own evidence, he has stated that5
he has returned some cheque to the complainant
and he is unable to prove which cheque he has
returned. Though he stated the cheque which he
has returned was not the subject matter of the
complaint, but he failed to et (sic) an
acknowledgment from the respondent for having
returned the cheque. It is a well settled law that
a person who is throwing allegation against
another person, the burden of proof is on the part
of the complainant who is throwing the
allegation. Here in this case, the complainant
had not proved his case beyond reasonable doubt
and hence we are not inclined to give severe
punishment to the respondent herein.”
5. While expressing the aforesaid opinion, the
Disciplinary Committee observed that as the appellant was
an advocate, he should have been more careful and,
therefore, he was guilty of gross negligence and accordingly
imposed the punishment as has been indicated
hereinbefore.
6. On a perusal of the analysis of the findings returned by
the Disciplinary Committee of the Bar Council of India, it is
evident that it has taken exception to one aspect, namely,
the appellant had not obtained the acknowledgment of the
cheque from the respondent. Be it noted, the Disciplinary
Committee did not think it appropriate to advert to the fact
whether the cheque was handed over to the police for the6
purpose of investigation. That apart, the Committee has
also not adverted to any other aspect, and correctly so, as
nothing else was brought in evidence.
7. It is submitted by Mr. Sanjay Parikh, learned counsel
for the appellant, that when the Disciplinary Committee of
the Bar Council of India has unequivocally arrived at the
conclusion that it is a case of mere negligence which is also
evincible, a punishment as envisaged under Section 35
could not have been imposed. He would further submit that
disciplinary authority has erroneous stamped it as gross
negligence which makes the order absolutely indefensible.
He has commended us to a Constitution Bench decision in
the matter of Mr. 'P' an Advocate, Re v.1
]. That apart, he
has also placed reliance on a three Judge Bench decision in
P.D. Khandekar vs. Bar Council of Maharashtra,
Bombay & Ors.2
.
8. Ms. K. Sarda Devi, learned counsel for the respondent
supported the order passed by the Disciplinary Committee
of the Bar Council of India.
1
AIR 1963 SC 1313
2
(1984) 2 SCC 5567
9. Section 35 of the Act reads as under :-
“35. Punishment of advocates for misconduct (1)
Where on receipt of a complaint or otherwise a
State Bar Council has reason to believe that any
advocate on its roll has been guilty of professional
or other misconduct, it shall refer the case for
disposal of its disciplinary committee.
(1A) The State Bar Council may, either of its
own motion or on application made to it by any
person interested, withdraw a proceeding
pending before its disciplinary committee and
direct the inquiry to be made by any other
disciplinary committee of that State Bar
Council.
(2) The disciplinary committee of a State Bar
Council shall fix a date for the hearing of the
case a notice thereof to be given to the advocate
concerned and to the Advocate General of the
State.
(3) 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,
namelya.
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
periods as it may deem fit.
d. Remove the name of the advocate from the
State roll of advocates
(4) Where an advocate is suspended from
practice under clause (c) of sub section (3) he
shall, during the period of suspension, be
debarred from practicing in any court or before
any authority or person in India. 8
(5) Where any notice is issued to the
Advocate-General under sub-section (2) the
Advocate –General may appear before the
disciplinary committee of the State Bar Council
either in person or through any advocate
appearing on his behalf.
Explanation - In this section, section 37 and
section 38 the expression "Advocate-General" and
"Advocate-General of the State" shall, in relation
to the Union territory of Delhi, mean the
Additional Solicitor General of India.”
10. On a plain reading of the aforesaid provision, it is clear
as crystal what punishment is to be imposed in case of
misconduct. In the case at hand, as we find, that a
conclusion has been arrived at by the Disciplinary Authority
that it is a case of gross negligence at the hands of the
appellant. As urged by Mr. Parikh, it is only required to be
seen whether it is a mere negligence or gross negligence.
11. The Constitution Bench, in the matter of Mr. 'P' an
Advocate, (supra) has ruled that mere negligence or error of
judgment on the part of an advocate would not amount to
professional misconduct. It has been further held therein
that error of judgment cannot be completely eliminated in
all human affairs and mere negligence may not necessarily
show that the advocate who is guilty of it can be charged
with misconduct. The Constitution Bench, as is
demonstrable, has drawn a distinction between 'negligence'
and the 'gross negligence'. We think it appropriate to
reproduce the said passage. It is as follows:-
“But different considerations arise where the
negligence of the Advocate is gross. It may be that
before condemning an Advocate for misconduct,
courts are inclined to examine the question as to
whether such gross negligence involves moral
turpitude or delinquency. In dealing with this
aspect of the matter, however, it is of utmost
importance to remember that the expression
"moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or
opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A
willful and callous disregard for the interests of
the client may, in a proper case, be characterised
as conduct unbefitting an Advocate. In dealing
with matters of professional propriety, we cannot
ignore the fact that the profession of law is an
honourable profession and it occupies a place of
pride in the liberal professions of the country.
Any conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes
an Advocate unfit to be entrusted with the
responsible task of looking after the interests of
the litigant, must be regarded as conduct
involving moral turpitude. The
Advocates-on-record like the other members of
the Bar Advocates are Officers of the Court and
the purity of the administration of justice
depends as much on the integrity of the Judges
as on the honesty of the Bar. That is why in
dealing with the question as to whether an
Advocate has rendered himself unfit to belong to
the brotherhood at the Bar, the expression "moral
turpitude or delinquency" is not to be construed
in an unduly narrow and restricted sense.”10
[Emphasis Supplied]
12. On a careful reading of the aforesaid passage, it is
quite clear that concept of “gross negligence” cannot be
construed in a narrow or a restricted sense. It is because
honesty of an Advocate is extremely significant. The
conduct of an Advocate has to be worthy so that he can be
called as a member of the noble fraternity of lawyers. It is
his obligation to look after the interest of the litigant when is
entrusted with the responsible task in trust. An Advocate
has to bear in mind that the profession of law is a noble
one. In this regard, we may fruitfully refer to what has
been stated in Sanjiv Datta Dy. Secy. Ministry of
Information & Broadcasting, In re.3
:-
“The legal profession is a solemn and serious occupation.
It is a noble calling and all those who
belong to it are its honourable members. Although
the entry to the profession can be had by
acquiring merely the qualification of technical
competence, the honour as a professional has to
be maintained by its members by their exemplary
conduct both in and outside the court. The legal
profession is different from other professions in
that what the lawyers do, affects not only an individual
but the administration of justice which is
the foundation of the civilised society. Both as a
leading member of the intelligentsia of the society
and as a responsible citizen, the lawyer has to
conduct himself as a model for others both in his
3
 (1995) 3 SCC 61911
professional and in his private and public life.
The society has a right to expect of him such
ideal behaviour. It must not be forgotten that the
legal profession has always been held in high esteem
and its members have played an enviable
role in public life. The regard for the legal and judicial
systems in this country is in no small measure
due to the tireless role played by the stalwarts
in the profession to strengthen them. They
took their profession seriously and practised it
with dignity, deference and devotion. If the profession
is to survive, the judicial system has to be
vitalised. No service will be too small in making
the system efficient, effective and credible.”
13. Slightly recently in Dhanraj Singh Choudhary v.
National Vishwakarma4
, it has been observed:-
“The legal profession is a noble profession. It is
not a business or a trade. A person practising law
has to practise in the spirit of honesty and not in
the spirit of mischief-making or money-getting.
An advocate’s attitude towards and dealings with
his client have to be scrupulously honest and
fair.”
14. There can be no doubt that nobility, sanctity and
ethicality of the profession has to be kept uppermost in the
mind of an Advocate. Keeping that primary principle in
view, his conduct has to be weighed. There the approach of
appreciating the evidence brought on record and the
yardstick to be applied, become quite relevant. A
three-Judge Bench in P.D Khandekar (supra) while dealing
4
 (2012) 1 SCC 74112
with the scope of an appeal preferred under Section 38 of
the Act, ruled that in an appeal under Section 38, this
Court in a general rule, cannot interfere with the concurrent
finding of fact by the Disciplinary Committee of the Bar
Council of India and the State Bar Council unless the
finding is based on no evidence or it proceeds on mere
conjectures and surmises. The Court has further laid down
that finding in such 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; and there should be
convincing preponderance of evidence. We must
immediately note with profit that the said principle is
absolutely significant. The Court has stressed upon the
rule to be applied for acceptance or treating the finding
defensible by the Disciplinary Committee of Bar Council. In
this regard it is fruitful to reproduce the following passage
from the said authority:-
“There is a world of difference between the giving
of improper legal advice and the giving of wrong
legal advice. Mere negligence unaccompanied by
any moral delinquency on the part of a legal
practitioner in the exercise of his profession does
not amount to professional misconduct. In re A
Vakil, Coutts Trotter, C.J. followed the decision13
in re G. Mayor Cooke and said that:
"Negligence by itself is not professional
misconduct; into that offence there must
enter the element of moral delinquency. Of
that there is no suggestion here, and we are
therefore able to say that there is no case to
investigate, and that no reflection adverse to
his professional honour rests upon Mr. M.',
The decision was followed by the Calcutta
High Court in re An Advocate, and by the
Allahabad High Court in the matter of An
Advocate of Agra and by this court in the
matter of P. An Advocate.
The decision was followed by the Calcutta High
Court In re An Advocate [AIR 1955 CAL 484], and
by the Allahabad High Court In the matter of An
Advocate of Agra [AIR 1940 All 289] and by this
Court In the matter of P. An Advocate [AIR 1934
Rang 33]”
15. It is urged by Mr. Parikh that when no finding is
returned that the cheque was kept back by the appellant,
there is no gross negligence. On the contrary, as he would
submit, it was handed over to the investigating agency
which was directed by learned Magistrate to carry out the
investigation under Section 156(3) CrPC. His only fault is
that he could not get the acknowledgment.
16. Ms. K. Sarda Devi, learned counsel for the respondent,
per contra, would urge that the case of the respondent is
squarely covered by the dictum of the Constitution Bench
inasmuch as the Disciplinary Committee of the Bar Council
of India has held that there was gross-negligence on the
part of the appellant.
17. On a studied scrutiny of the evidence in this context,
the factual score, the act of the present appellant cannot be
treated to be in the realm of gross negligence. It would be
only one of negligence. The tenor of the impugned order, as
we notice, puts the blame on the appellant on the
foundation that he had not received the acknowledgment.
He has offered an explanation that he had given the cheque
to the police. There has been no delineation in that regard.
That apart, there is no clear cut analysis on deliberation on
gross negligence by the advocate. The Disciplinary
Committee found the appellant guilty of gross-negligence as
he had failed to get the acknowledgment from the
complainant-respondent. The examples given by the
Constitution Bench are of different nature. In the obtaining
factual matrix, therefore, we are unable to accept the
conclusion arrived at by the Disciplinary Authority of the
Bar Council of India that the negligence is gross. Hence we
are impelled not to accept the submission advanced by
learned counsel for the respondent.
18. Thus analysed, we are disposed to allow the appeal
and accordingly, we so direct and the order passed by the
Disciplinary Committee of the Bar Council of India is set
aside. Though we have set aside the order, on a suggestion
being made, Mr. Sanjay Parikh, learned counsel for the
appellant, agreed that the amount paid to the complainant
need not be refunded. The amount that has been deposited
to the Bar Council of India shall be refunded by the Bar
Council of India. There shall be no order as to costs.
………….................J.
(Dipak Misra)
………….................J.
(R. Banumathi)
New Delhi;
February 16, 2017.
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