Supreme Court: Error of judgment committed by Judicial officer does not amount to misconduct

It is a disturbing trend nowadays that Judicial Officers are made

scapegoats and penalized whether by inconvenient transfers or otherwise,

whenever there are agitations/ demonstrations against the Judicial Officers

whether by Advocates or others, irrespective of the extent of the fault or

responsibility of the Judicial Officers concerned. In this case, it is patently clear

that action against the Judicial Magistrate had been prompted by the agitation

of Railway employees and disruption of services. No one examined whether

there was any justification for the disruption of services by the Railway

employees for requiring information from two of them or for the detention of a

third employee, a rank outsider to the investigation by the Railway Magistrate,

for hurling abuses at the Magistrate in open Court and threatening him.

It is well settled that an error of judgment does not per se constitute misconduct.

If the Railway Magistrate had acted bona fide but exercised his

powers erroneously based on his perception of the powers of a Judicial Railway

Magistrate, he could not have been held to have committed mis-conduct.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.24840/2019

THE HON’BLE HIGH COURT AT CALCUTTA  Vs MINTU MALLICK 

Dated:NOVEMBER 15, 2019

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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,(2017)5 SCC 755

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Whether mere error of judgment amounts to misconduct?

MISCONDUCT:
8. Misconduct has been defined in Black's Law Dictionary,
Sixth Edition as:
“A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful
behavior, wilful in character, improper or wrong behavior,
its synonyms are misdemeanor, misdeed, misbehavior,
delinquency,impropriety,mismanagement offense, but not
negligence or carelessness.”
Misconduct in office has been defined as:
“Any unlawful behavior by a public officer in relation to
the duties of his office, wilful in character. Term 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. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at
page 821 defines ‘misconduct’ thus:
10“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 unskilfulness
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 indefinite. Misconduct
in office may be defined as unlawful behaviour or neglect
by a public officer, by which the rights of a party have been
affected.”
Thus it could be seen that the word ‘misconduct’ though
not capable of precise definition, on reflection receives its
connotation from the context, the delinquency in its
performance and its effect on the discipline and the nature
of the duty. It may involve moral turpitude, it must be
improper or wrong behaviour; unlawful behaviour, wilful
in character; forbidden act, a transgression of established
and 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 matter and the
context wherein the term occurs, regard being had to the
scope of the statute and the public purpose it seeks to
serve….”.
(See also: State of Punjab & Ors. v. Ram Singh Ex. Constable,
AIR 1992 SC 2188).
119. Mere error of judgment resulting in doing of negligent act
does not amount to misconduct. However, in exceptional
circumstances, not working diligently may be a misconduct. An
action which is detrimental to the prestige of the institution may
also amount to misconduct. Acting beyond authority may be a
misconduct. When the office bearer is expected to act with
absolute integrity and honesty in handling the work, any
misappropriation, even temporary, of the funds etc. constitutes a
serious misconduct, inviting severe punishment. (Vide:
Disciplinary Authority-cum-Regional Manager & Ors. v.
Nikunja Bihari Patnaik, (1996) 9 SCC 69; Government of Tamil
Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571; Inspector Prem
Chand v. Govt. of NCT of Delhi & Ors., (2007) 4 SCC 566; and
State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594).
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2085 of 2012
Ravi Yashwant Bhoir V District Collector, Raigad & Ors. 

 Dr. B. S. CHAUHAN, J.
Citation;AIR2012SC1339, 2012(2)ALLMR962, 2012(2)BomCR859(2012)4SCC407,

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