PANDURANG DATTATREYA KHANDEKAR v. THE BAR COUNCIL OF MAHARASHTRA BOMBAY & ORS

Citation: [1984] 1 S.C.R. 414

Court: Supreme Court of India

Bench: A.P. SEN, E.S. VENKATARAMIAH, R.B. MISRA

Case summary

In dealing with the question of punishment to be imposed on them, tlie Disciplinary Committee observes : The Slate Bar Council held that these two charges have • not been substantiated and the Disciplinary Committee of the Bar

Judgment text

PANDURANG DATTATREYA KHANDEKAR v• • THE BAR COUNCIL OF MAHARASHTRA . . BOMBAY & ORS. October 20, 1983 · (A. P. SEN, E. S. VENKATARAMIAH AND R. B. MISRA JJ,j • Appellate Jurisdiction-Appeal under Section 38 of the Advocates Act, - 1961-Interference by the conc. urrent finding offact by the Disciplin"ary Commitlee of the Bar Council-Degree of proof required. Jor a_ Disciplinary Proceeding, explained. Advocates Act, 1961, Section 35 (! )-Professional MrsconduCt, meaning of-Distinction between giving ofwrong advice and improper legal advice--The giving ofimproper legal advice may amount to professional misconduct. The appellant and a_nothe. r advocate were found- guilty Of professional misconduct by the Disciplinary _Committee of the Bar Council of India by its order dated April 23, 1~7 ·. The gravamen of the charge against them related to the giving of improper legal advice on two . specific counts.

The Disciplin~ry Committee held them guilty on both counts and ordered the suspensian of E: the appellant from practice for a period of four months and the other advoc3te for a period of two months. · ~ ·Allowing the appeal in part, the Court HELD: 1. 1 This Court would not_. as a general rule, in an appeal . under s. 38 of ihe Advocates ACt, 1961, interfere with the concurrent findings of fact reached 'by the Disciplinary c"omrnittee of the B3r Council of India and of the . State Bar Couilcil unless they are based on no evidence or proceed on mere conjectures and surmises. Finding in such disciplinary proceedings must b~ sustained by higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in criminal ·prosecu· tion. ~here should be convincing preponderailce of evidence [419 B·Cj -... ,, r' -- 2.

1 The test of what constitutes "grossly improper conduct in the diScharge of professional duties" has· been laid down in many cases. The test to be applied is whether an advocate, in the purs_uit of his profession, has. done something with regard to it which woUld be reasonably regarded as disgraceful or dishonourable by his professional brethren: That is to say, whether -the proved ·misconduct of the advoc professional misconduct can be· supported. In the instant case, it is not at all certain that it can be said with strict accuracy that the appellant was guilty of moral turpitude or that there was any moral delinquency on his par!. As to the·first charge, the Disciplinary Committee has found the appellant ·and Agavane'to be guilty of drawing up a false affidavit to the effect that Potdar and Smt. Dhavale had been married at Poona on January 7, 1974 according to Hindu rites although no such marriage was ever performed.

Upon the evidence on record, it is difficult to believe that Potdar and Smt. Dhavale could be prevailed upon to swear an affidavit of the kind unless it was prepared on their instructions . or that they· were induced. to part with Rs. 100 towards the professional fee of the appellant and Agavane on- tlje faith of. a false assurance that the affidavit would be sufficient evidence in proof of their marriage. Potdar was an Overseer and had put in an adver· tisement inviting suitable proposals for his marriage. Smt. Dhavale held a Diploma in Education and had been working ,as a Teacher in a Primary School under the Zita Parishad, Satara. She had also • advertised in the papers seeking suitable proposals for her marriage. Both of them corresponded with each other and decided to get ma,trie'd and for this purpose they came to Poona on January 7, 1974 for legal advice With respect to their marriage. Incidentally, Smt.

Dhavale who is a tribal woman claims to have got a divorce by cus· tom prevalent among her tribe, wl\l'reas Potdar ytho was married earlier ·according to Hindu rites presumably got his divorce by initiating proceedings under the Hindu Marriage Act, 1955. They both approached the appellant and Agavane and wanted their legal advice and stated that they wou1d like to get married and leave Poona on the same day or, in other words, they were in a hurry to get married.. Ex. C·13 which inter alia states: "We have today married at Poona as per Hindu rites" was drawn up by the appellant and Agavane and signed by both the parties before the Sub-Divisi EKAR v. BAR COUNCIL (Sen, J. ) 42S Agavane vii. A. D. Ghospurkar, N. L. Thatte, T. S. Pariyani and V. A. Mandake. The evidence of these lawyers shows that their work mainly consists in attestation of witnesses. Their . appearnce in cases were few and far between..

They either sit in the verandah near the · • stamp-vendor in front of the Sub-Registrar's· office or in the Court . . ' compound with the petition-writers or typists. To illustrate this,· A. D: Ghospurkar, who is an advocate·of 8 years'· standing, frankly 8 admits that his main work is io indentify parties who come to make affidavits before the Sub-Divisional Magistrates and that his work of · conducting cases i~ negligible. During his 8 years at the bar, he has done near about IO to 12 chapter cases and about 8 cases in other. courts. The case presents a dismal picture of ·the· legal profession. We mean no disrespect to the members of the Poona C. ollectorate Bar. The conditicin. s prevalent are more or Jess the same everywhere and it" is a matter of deep concern that nothing has been done to organize the bar. We regret to say that the complainants the~selves are ·not free from blemish. The Disciplinary Commi1tee of the Bar Council of India observes that .

the method adopted by ihe 'complainants to procure work by employing agents itself all)ouqts. to professional misconduct. It deprecate~. the practice that is prevalent at the Poona ·E. · Collectorate Bar· and observes w'iih regard to the complainants : "This means that the putpose of the Association •was · to appoint certain touts who would get work for their . . members ·and then the work will l)e . distributed among the members. Touting or appointing touts is not consistent . F with the rules framed under the Advocates Act ~nd such practice would be considered professional . misconduct but . , that is exactly what the Bar Association referred to above intend to do," We are informed that disciplinaFy proceedings have since been .

initiated against the complainants and therefore we refrain from 'expressing any opinion on the impropriety of_their cond~ct: • • I , ·The Preamble to Chapter Ir Part VI of the Jlules lays down that an advocate shall at· all times comport himself in a trianilei befitting his status as an officer of the Courl privileged member of the (1984) I S. C. R. community and a gentleman. Rule 36 of these rules provides that an advocate shall not solicit work or advertise, either . directly · or indirectly, whether by circulars, advertisements, touts, personal communications etc. It is a well recognized rule of etiquette in the legal profession that no attempt should be made to advertise oneself • or solicit work directly or indirectly. In his 'Brief to Counsel', 5th edn. , 1962, ·p. 94, the celebrated author Henry Cecil administered. a word of caution : • • "Don't go touting ·for work in any ·circumstances. 'There are a1l sorts of ways of doing this. Don't adopt any of them.

If you are going to get on, you will get on without doing that kind of thing, and if you are not going . to get on, the little extra work you get will not either make you snccessful or counter-act the bad impression you will make on many people inside and outside the law. " We are constrained to say that the evil of touting has been in existence since ancient times and still is a growing menance, and the bar is open to the accusation of having done nothing tangible to eradicate this unmitigated evil. The persons most affected . by this . "" lil system are the junior lawyers as· a class. Some law~ers may well expound unblushingJy. the doctrine of getting on, getting honour and at last' getting honest. If it is generally known that a person however honest has got on and got honour through the patronage of touts, the bar should decline to show such a man any honour . or conside- .

ration whatsoever: We impress upon the Bar Council of India and the State Bar Councils that if they still take strong action t0 eradicate , this evil, it would lead to a high standard of propriety and professional rectitude which would make it impossible for a tout to turn a penny within th. e precincts of the law courts. . G. . Finally,'it is the solemn duty of the Bai Council q( India and the State Bar Councils to frame proper schemes for the training of the junior members of the bar, for entrusting of work to . them, and. for their proper guidance so that eventually we have new generation of efficiently trained la~yers. It is regrettable that even after. more than two decades that the Advocates Act was brought on the Statute Book; neither the Bar Council of India. nor the State :Bar Councils • • P. D. KHANDEW v. JIAR couNCU: (Seii,J. ) . 427 • have taken any positive steps towards ameliorating the conditions of · the members of the bar, particularly of the junior members. • .

Sub-ss. .. ·A. (3) of ss. 6 and 7 of the Act provide that the State Bar Councils and ·· " the Bar Council of India may constitute one or more funds in the . prescribed manner for th~ purpose of (a) giving financial· assistance to organised labour welfare schemes for the indigent, disabled or other advocates, and (b) giving legal aid 'or advice in accordance with the rules made'that behalf.. ·. Sub-ss. (3) thereof provide that they·may receive any grants, donations, · gifts or. benefactions for the above purposes, which shall be credited to th. e appropriate fund. or funds·: under that sub-section. The Bar Council of India and the State Bar -- Councils hold very large funds, may be to the tum~ of rupees one crore and above, but no positive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, parti·- · cularly the juxiior members of the bar. · It is with· a deep sense of ... .

anguish that one finds the legal profession in •a state of total disarray ·and for the majority it is. a• continuous struggle . for existence, . The · · hardest hit arc the junior members. We expect that the matter wm · receive the attention that it deserves. In the result, the appeal partly suceeds and is allowed. The order of the Disciplinary,C? mmittee of the Bar Council of India holding · - the appellant and A. N. Agavane guilty of professional misconduct is set aside.. The proceedings drawn against them ·under sub·s. (I) of s. 35 of the Advocates Act, 1961 are. dropped. We hope and trust that they would not by their condu~t or behaviour prove themselves to be unworthy to remain as members· of the grea. t profession "to · which they belong. . ,. ,,. • There shall be no order a·s to costs. · . " ' S. R. . •.. Appeal partly allowed. . .... _. , ' __:; I •