Bar Council of Maharashtra v. M.V.Dabholkar

Citations1976 AIR 242, 1976 SCR (2) 48
Acts InvolvedAdvocate Act, 1961 – Section 10, Advocate Act, 1961 – Section 3(2), Advocate Act, 1961 – Section 35, Advocate Act, 1961
PetitionerBar Council of Maharashtra
Respondent M.V.Dabholkar
Bench/JudgesKRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
GUPTA, A.C.
FAZALALI, SYED MURTAZA

Abstract

The Judgment of the Court was delivered by KRISHNA IYER, J.-These appeals have filled us the maximum amount with deep sorrow like the pained surprise. The story of the alleged ‘profession misconduct’ and therefore the insensitivity of the disciplinary authority to aberrant professional conduct are the source of our distress, as we are going to presently explain, after unfurling the factual canvas first. The first chapter of the litigation during this Court related to the standing, of the State Bar Council to appeal to the current Court, under Section 38 of the Advocates Act, 1961 (the Act, for short) against the appellate decision of the Disciplinary Tribunal appointed by the Bar Council of India. This Court upheld the competence to appeal, thus leading us to the current stage of removing the eight cases on merits.

Introduction

The epileptic episodes-what another epithet can adequately express tile solicitation circus dramatized by the witnesses as practiced by the panel of advocate respondents before us? make us blush within the narration. For, finally can we not all at once belong” to the ‘inner republic of bencher and bar’? The putative delinquents are lawyers practicing within the criminal courts in Bombay City. Their profession ordains a high level of ethics the maximum amount within the means as within the ends. Justice can’t be attained without the stream being pellucid throughout its course which is of great public concern, not merely professional care. Briefly expressed, these practitioners, in step with testimony; recorded by the State Disciplinary Tribunal, positioned themselves at the doorway to the Magistrates Courts, watchful of the arrival of potential litigants. At sight, they rushed towards the client’s ill an unsightly scrimmage to grab the briefs, to put claim to the engagements even by physical fight, to undercut fees, and by this unedifying exhibition, sometimes carried even into the Bar Library, solicited and secured work for themselves. If these charges were true, any member of the Bar with elementary ethics in his bosom would be outraged at his brethren’s conduct and yet, in the reversal of the State Disciplinary Committee’s finding, the appellate Tribunal at the national level appears to own entered a verdict, supported a 3 point formula, that this conduct, whether or not true, was on balance a shot to solicit practice and didn’t cross the borderline of misconduct? The Bar Council of the State OF Maharashtra (the appellant before us) and therefore the Bar Council of India which could be a party respondent have expressed consternation at this view of the law of professional misconduct and that we share this alarm were this view right, it’s difficult to call the bar noble. Were this understanding of deviant behavior sound, there’s little to differentiate between railway porters and legal practitioners although we don’t mean to harm the previous and have mentioned a past practice, to drive home our present point? We don’t wish to dilate further on the evidence into a date because it concerns each of the respondent-advocates seeable of certain developments that we’ll presently notice. There are eight cases but we are relieved from dissecting the evidence against most of them for reasons which we’ll hopefully and shortly state.

Prior History

From the Judgment and Order dated April 14, 1974 of the Disciplinary Committee of the Bar Council of India, New Delhi, D.C. Appeals Nos. 15 to 19, 21, 22 and 25 of 1973 respectively.

Facts

The Bar Council of Maharashtra, by its resolution No. 29 dated August 8, 1964, considered the complaint received from the state supreme court against one Kelawala and 15 other Advocates among whom are those charged with professional misconduct and covered by the current appeals, under Section 35(1) of the Act, and presumably having reason to believe that the professional misconduct alleged required an additional probe referred the case to its disciplinary committee. This procedure is in due compliance with Section 35(1) of’ the Act and, although the respondent in C.A. 1467/74 (A. K. Doshi) has contended that the resolution of the Bar Council doesn’t ex facie disclose that it had reason to believe that the advocates involved were guilty of professional misconduct, we see no merit in it the need of ‘reason to believe’ can not be converted into a formalized procedural roadblock, it is essentially a barrier against frivolous inquiries.

Issues

It held that unless the three elements were satisfied it couldn’t be said that an advocate had acted beyond the quality or professional conduct and etiquette. It, therefore, absolved all the respondents of the charge of professional misconduct. Does the State Bar Council have are available in appeal to the present Court?

Argument Advanced from the Side of the Petitioner

 it’s inherent the resolution of the Bar Council when it says that it’s considered the complaint and decided to refer the refer the disciplinary committee, that it had reason to believe, as prescribed by the statute Such blanket regard to the disciplinary body, thus far as we are concerned, associated with the respondent altogether the cases were tried together as a unified proceeding and disposed of by a standard judgment by the Disciplinary Committee, a strategy conducive to confusion and prejudice as we are going to explain later during this judgment. The respondents within the various appeals before us were found guilty ‘of conduct which seriously lowers the reputation of the Bar within the eyes of the public’ and that they were suspended from practicing as Advocates for a period of three years. Appeals were carried to the Bar Council of India and” in accordance with the statutory provision, they have stated the Disciplinary Committee appointed by it under Section 37(2) of the Act. The Appellate Disciplinary Committee heard the appeals and absolved them of professional misconduct. Aggrieved by this verdict of reversal, the Bar Council of Maharashtra has appealed to the current Court. The initial hurdle of locus standi has been surmounted as stated earlier, we’ve been addressed arguments on the merits by Shri V. S. Desai on behalf of the appellant. He has canvassed the correctness of the finding of fact in each case although with varying degrees of diffidence, but turned his forensic fusillade on the somewhat startling concept of professional misconduct adopted by that disciplinary Tribunal we’ll proceed to pander to each appeal separately up to now because the factual foundation for the costs is anxious but discuss the legal question later because it affects not merely the advocates ranged as respondents but the Bar in India and therefore the public within the country. The profound regret of those cases lies not only within the appellate disciplinary tribunal’s subversive view of the law of professional conduct that attempted solicitation by snatching briefs and catching clients is or no ethical moment, or contravention of the relevant provisions, but also within the naive innocence of fair and speedy procedure displayed by the State Disciplinary Tribunal in clubbing together various charges leveled against 16 advocates in one common trial, mixing up the evidence against many, recording omnibus testimony slipshodly, not maintaining a record of every day’s proceedings, examining witnesses within the absence of some respondents, taking eight years to complete an endeavor involving depositions of 4 witnesses and also the crowning piece, omission to contemplate the evidence against each alleged delinquent individually within the semi-penal proceedings. True, a statutory tribunal may ordinarily regulate its procedure without an excessive amount of rigidity, subject to’ the principles of natural justice, but large-scale disregard of the well-known norm of the fair process makes us ponder whether some a minimum of the respondents haven’t been handicapped and whether justice might not be a casualty if the tribunal isn’t alerted about its procession responsibilities. 

Argument Advanced from the side of the Respondent

The respondents contended on the ruling of this Court in Adi Pherozshah Gandhi’s case AIR 1971 SC 385 (supra) that the Bar Council of the State is not a person aggrieved to maintain an appeal against a decision of its disciplinary committee for these reasons. First, the Bar Council of a State is not an aggrieved person because Bar Council has not suffered any legal grievance, and the decision of the Bar Council of India has not deprived the Bar Council of a State of anything. Second, the allegation that the order of the disciplinary committee of the Bar Council of India is wrongfully made does not by itself give any grievance to the Bar Council of a State. The person must be aggrieved by the order and not by the consequences which ensue. Third, it is not the duty of the State Bar Council to attempt to set right any alleged error of the disciplinary committee of the Bar Council of India. The reason is that no such duty has been imposed or cast by law on the Bar Council of a State. Fourth, a person can be said to be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. Fifth, the Bar Council of a State is subordinate to the Bar Council of India and is, therefore, not competent to appeal against any order of the superior body. Finally, an appeal could have been filed by the Advocate-General or the Attorney-General of India who has the right to appeal but they have chosen not to do so.

We’ve got some observations to form about the Tribunals at the State and at the appellate levels within the further stages of this judgment. However, we discover it convenient to lose the appeals on the evidence, on the belief that if, in fact, there are snatching and fighting and like solicitation exercises indulged in by any of the respondents, such conduct is in gross breach of professional behavior and invites punishment. Case-by-case disposal is desirable then we start with Dabholkar (respondent in C.A. 1461/74) who appeared nose to nose to plead in defense. The evidence against him is much from satisfactory and suffers from generalized imputation of misconduct against a gaggle of guilty lawyers. To dissect and select is an erroneous process, except where individualized activities are clearly deposed to. Moreover, the sole witness who implicates him swears: ‘I haven’t seen him actually snatching away the papers. I didn’t hear the talk Mr. Dabholkar had with the persons’. Moreover, he was a senior lawyer. We also record the very fact that he expressed distress because the arguments moved on. Other than the weak and mixed evidence against him, there’s the circumstance that he’s around 68 years old. With a hoop of truth, he submitted that he was too old to continue his practice within the profession and had resolved to retire into the sequestered vale of life. He frankly admitted that even but the evidence, if there have been any sins of the past, he wouldn’t pursue the trail of professional impropriety hereafter having decided virtually to exit of the Bar. apart from a limited Purpose. He had just four cases left with him which he desired to complete. Having received fees. He further represented that he failed to will accent any new briefs or appear in any Court except to the microscopic extent that the Bombay Paints & Allied Products.

Issues

It held that unless the three elements were satisfied it couldn’t be said that an advocate had acted beyond the quality or professional conduct and etiquette. It, therefore, absolved all the respondents of the charge of professional misconduct. Does the State Bar Council have are available in appeal to the present Court?

Judgment

It would seem to be incontestable that the general public contains a very real interest in railroads. Railroads are found vital to a healthy national economy; any such factor must, a priori, be deemed a potent component of the general public welfare. As such, it’s evident that a financially healthy railroad is of concern not only to its stockholders but to the general public yet…Finding that the management of a railroad has obligations running to the general public moreover as fiduciary duties attributable to the corporation’s stockholders, the Court concluded that, of those two responsibilities, the general public interest is paramount. “It must be remembered,” the Court cautioned, “that railways are public corporations organized for public purposes all of them primarily owe duties to the general public of the next nature even than that of earning large dividends for his or her shareholders. The words ‘person aggrieved’ is of wide import and may not be subjected to a restrictive interpretation. They are doing not include, of course, a mere busybody who is interfering in things which don’t concern him; but they are doing include someone who encompasses a genuine grievance because an order has been made which prejudicially affects his interests. Has the Attorney-General a sufficient interest for this purpose? Their Lordships think that he has. The Attorney General in an exceeding colony represents the Crown because of the guardian of the general public interest. it’s his duty to bring before the judge any misconduct of a barrister or solicitor which is of sufficient gravity to warrant disciplinary action. The Bar isn’t a personal guild, like that of ‘barbers, butchers and candlestick-makers’ but, by bold contrast, a public institution committed to public justice and unpaid public service. The grant of a monopoly license to practice law is predicated on three assumptions: (1) there’s a socially useful function for the lawyer to perform. (2) The lawyer could be a professional who will perform that function and (3) His performance as a knowledgeable person is regulated by himself and more formally, by the profession as a full. The central function that the bar must perform is nothing but the administration of. a look at the functions of the Bar Council, and it’ll be apparent that a rainbow of public-service corporation duties, including legal aid to the poor, stitches these bodies within the national hope that the members of this monopoly will serve society and keep to canons of ethics befitting an honorable order.

Concept Highlighted

Civil – misconduct – Advocate Act, 1961 and Advocate (Amendment) Act, 1974 – whether Bar Council of State is ‘a person aggrieved’ to take care of appeal under Section 38 – interests of Bar Council is to uphold standards of professional conduct and etiquette in the profession – Bar Council acts as custodian of high traditions of the noble profession – grievance of Bar Council is to be checked out purely from point of view of standards of professional conduct and etiquette – if any decision of the disciplinary committee of Bar Council of India is in keeping with State Bar Council like will lower standards and imperil high traditions and values in the profession – State Bar Council is the aggrieved person to safeguard interests of public, interests of profession and interest of Bar.

Conclusion

For, finally can we not all at once belong” to the ‘inner republic of bencher and bar’? The putative delinquents are lawyers practicing within the criminal courts in Bombay City. Their profession ordains a high level of ethics the maximum amount within the means as within the ends. Justice can’t be attained without the stream being pellucid throughout its course which is of great public concern, not merely professional care. Briefly expressed, these practitioners, in step with testimony; recorded by the State Disciplinary Tribunal, positioned themselves at the doorway to the Magistrates Courts, watchful of the arrival of potential litigants.

Questions

Q1. What does the disciplinary committee of the Bar Council of India?

The Bar Council of Maharashtra has not appeared while they started the proceedings suo motu and that we don’t pass any orders on costs and that we direct each party will bear their costs. However, we’ve known the evidence ourselves and also the identical has been placed intimately by the appellants. All that we are able to say is that we expected the Bar Council of Maharashtra to be represented within the appeal because proceedings were started suo motu.

Q2. hat’s Chapter V contains Sections 35 to 44?

Section 35 states that 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 to its disciplinary committee. The State Bar Council may, either of its own motion or on the application made thereto by somebody interested, withdraw a proceeding pending before its disciplinary committee and direct that inquiry to be made by another disciplinary committee of the State Bar Council. The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice to be to the advocate concerned and to the Advocate-General of the State.


Q3. What does the disciplinary committee of the state bar council state?

The disciplinary committee of the State Bar Council may make any of the subsequent 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 for such period because it may deem fit, (d) remove the name of the advocate from the State roll of advocates.

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