Swatantar Dixit Vs. Govind Ram & Anr.
EmailAppeal: Civil Appeal No. 5200 of 1998
Petitioner: Swatantar Dixit
Respondent: Govind Ram & Anr.
Apeal: Civil Appeal No. 5200 of 1998
Judges: Dr. A.S. ANAND C.J.I., R.C. LAHOTI & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Oct 08, 2000
Head Note:
ADVOCATES
Advocates Act, 1961
Section 35 – Misconduct – Punishment – Advocate obtaining signature of client on agreement to sell a piece of land in lieu of fees, though fees already paid – complaint lodged – Advocate filing suit for specific performance, but losing till High Court – Bar Council of India directing striking off the name from rolls – Adequacy of punishment – Licence remaining suspended for 2½ months – SLP in civil suit not pressed – Punishment – Nature and extent. Held that in the circumstances, suspension of licence for said period and costs of Rs. 5000/- will meet the ends of justice.
Held:
Punishment to be imposed for professional misconduct need not necessarily be punitive in nature. It can be correctional as well. The punishment imposed by the Bar Council of India appears to us to be disproportionate to the misbehaviour of the appellant. May be, if the appellant had appeared before the Bar Council and the Bar Council had not made
the order ex parte, the Bar Council may have itself imposed lesser punishment taken into account the mitigating and extenuating circumstances. Be that as it may, after the order of punishment imposed by the Bar Council of India, the appellant’s licence remained suspended till 2nd December, 1998, i.e., for a period of about two months and 15 days. Suspension of the licence for that period would, in our opinion, meet the ends of justice. The appellant to remain careful in future and to pay Rs. 5,000/- (Five Thousand) only by way of costs.
the order ex parte, the Bar Council may have itself imposed lesser punishment taken into account the mitigating and extenuating circumstances. Be that as it may, after the order of punishment imposed by the Bar Council of India, the appellant’s licence remained suspended till 2nd December, 1998, i.e., for a period of about two months and 15 days. Suspension of the licence for that period would, in our opinion, meet the ends of justice. The appellant to remain careful in future and to pay Rs. 5,000/- (Five Thousand) only by way of costs.
(Para 5)
JUDGEMENT:
ORDER
1. The respondent no.1 filed a complaint against the appellant, an Advocate, who had been engaged by the complainant to argue an appeal, alleging misappropriation of property. Inter alia it was alleged that the appellant-Advocate obtained signatures of the respondent on an agreement dated 8th July, 1986 purporting to give a piece of land measuring 15′ x 25′ from out of 15 biswas of land in lieu of fees to the Advocate, when the fees had already been paid. In 1991, the appellant-Advocate filed a civil suit (Civil Suit No. 92/1991) for specific performance based on the agreement dated 8th July, 1986. That was when the facts came to light. The complaint before the Bar Council of Himachal Pradesh was filed in 1993, but since it was not disposed of within one year, it was transferred to the Bar Council of India in 1995. The Disciplinary Committee of the Bar Council of India issued notice to the appellant but on the non-appearance of the appellant, heard and decided the case ex parte. Vide order dated 18th September, 1998, The Bar Council of India directed Bar Council of Himachal Pradesh to strike off the name of the appellant from the roll of Advocates maintained by them. As a consequence, the appellant was debarred from practising as an Advocate before any Court, Tribunal or Authority in India. It appears that civil suit (Suit No. 92/1991) filed by the appellant-Advocate for specific performance of the agreement dated 8th, July, 1986 was also dismissed and, the said dismissal was upheld by the High Court of Himachal Pradesh vide order dated 3rd September, 1997. A special leave petition has been filed against the said order of the High Court dated 3rd September, 1997 which is pending in this Court.
2. The facts are not disputed. Mr. K. Ramkumar, learned Counsel appearing for the appellant, however, has, after referring to material on record confined his submissions to the extent of punishment only. It is submitted that the appellant had enrolled himself as an Advocate in 1980 and when be entered into the agreement dated 8th July, 1986, he had sought opinion of his senior. It is submitted that the act was improper but since it was the first case of the appellant in which he had acted wrongly due to his immaturity, the punishment imposed upon him by the Bar Council of India for the said lapse is grossly excessive and disproportionate. It is submitted that the appellant who is about 50 years of age and has young children would be virtually on the road leading to ruination of his family. Learned Counsel has, therefore, prayed for leniency.
3. Learned Counsel also submits that insofar as the special leave petition filed by the appellant against the order of the High Court dated 3rd September, 1997, as well as the order in Review Petition dated 19th December, 1998 is concerned, he does not press the same and thus the appellant derives no benefit from his wrongful act. We, accordingly, dismiss the special leave petition both on the ground of unexplained inordinate delay of 360 days as well as on merits.
4. Reverting back to the question of punishment, in our opinion the order of the Disciplinary Committee of the Bar Council of India does call for some interference as the punishment imposed ex parte appears to us to be rather harsh and disproportionate.
5. Punishment to be imposed for professional misconduct need not necessarily be punitive in nature. It can be correctional as well. The appellant through his learned Counsel has offered unconditional regret for the objectionable behaviour of the appellant and has submitted that ever since the order of stay of punishment was granted by this Court on 2nd December, 1998, the appellant has been practising as an Advocate in a fair and proper manner and has not given rise to any complaint. While upholding the order of professional misconduct against the appellant, in our opinion, it would meet the ends of justice if we reduce the punishment. The punishment imposed by the Bar Council of India appears to us to be disproportionate to the misbehaviour of the appellant. May be, if the appellant had appeared before the Bar Council and the Bar Council had not made the order ex parte, the Bar Council may have itself imposed lesser punishment taken into account the mitigating and extenuating circumstances. Be that as it may, after the order of punishment imposed by the Bar Council of India, the appellant’s licence remained suspended till 2nd December, 1998, i.e., for a period of about two months and 15 days. Suspension of the licence for that period would, in our opinion, meet the ends of justice. Since the appellant resumed his practice of law on the 2nd of December, 1998, pursuant to the interim order made by this Court, to once again suspend his licence for whatever period after a lapse of about twenty months, may not be fair. We direct the appellant to remain careful in future and to pay Rs. 5,000/- (Five Thousand) only by way of costs to the first respondent. The costs shall be paid within four weeks from today.
6. With the aforesaid modification in punishment the appeal is disposed of.
7. The Special Leave Petition shall, however, stand dismissed.
1. The respondent no.1 filed a complaint against the appellant, an Advocate, who had been engaged by the complainant to argue an appeal, alleging misappropriation of property. Inter alia it was alleged that the appellant-Advocate obtained signatures of the respondent on an agreement dated 8th July, 1986 purporting to give a piece of land measuring 15′ x 25′ from out of 15 biswas of land in lieu of fees to the Advocate, when the fees had already been paid. In 1991, the appellant-Advocate filed a civil suit (Civil Suit No. 92/1991) for specific performance based on the agreement dated 8th July, 1986. That was when the facts came to light. The complaint before the Bar Council of Himachal Pradesh was filed in 1993, but since it was not disposed of within one year, it was transferred to the Bar Council of India in 1995. The Disciplinary Committee of the Bar Council of India issued notice to the appellant but on the non-appearance of the appellant, heard and decided the case ex parte. Vide order dated 18th September, 1998, The Bar Council of India directed Bar Council of Himachal Pradesh to strike off the name of the appellant from the roll of Advocates maintained by them. As a consequence, the appellant was debarred from practising as an Advocate before any Court, Tribunal or Authority in India. It appears that civil suit (Suit No. 92/1991) filed by the appellant-Advocate for specific performance of the agreement dated 8th, July, 1986 was also dismissed and, the said dismissal was upheld by the High Court of Himachal Pradesh vide order dated 3rd September, 1997. A special leave petition has been filed against the said order of the High Court dated 3rd September, 1997 which is pending in this Court.
2. The facts are not disputed. Mr. K. Ramkumar, learned Counsel appearing for the appellant, however, has, after referring to material on record confined his submissions to the extent of punishment only. It is submitted that the appellant had enrolled himself as an Advocate in 1980 and when be entered into the agreement dated 8th July, 1986, he had sought opinion of his senior. It is submitted that the act was improper but since it was the first case of the appellant in which he had acted wrongly due to his immaturity, the punishment imposed upon him by the Bar Council of India for the said lapse is grossly excessive and disproportionate. It is submitted that the appellant who is about 50 years of age and has young children would be virtually on the road leading to ruination of his family. Learned Counsel has, therefore, prayed for leniency.
3. Learned Counsel also submits that insofar as the special leave petition filed by the appellant against the order of the High Court dated 3rd September, 1997, as well as the order in Review Petition dated 19th December, 1998 is concerned, he does not press the same and thus the appellant derives no benefit from his wrongful act. We, accordingly, dismiss the special leave petition both on the ground of unexplained inordinate delay of 360 days as well as on merits.
4. Reverting back to the question of punishment, in our opinion the order of the Disciplinary Committee of the Bar Council of India does call for some interference as the punishment imposed ex parte appears to us to be rather harsh and disproportionate.
5. Punishment to be imposed for professional misconduct need not necessarily be punitive in nature. It can be correctional as well. The appellant through his learned Counsel has offered unconditional regret for the objectionable behaviour of the appellant and has submitted that ever since the order of stay of punishment was granted by this Court on 2nd December, 1998, the appellant has been practising as an Advocate in a fair and proper manner and has not given rise to any complaint. While upholding the order of professional misconduct against the appellant, in our opinion, it would meet the ends of justice if we reduce the punishment. The punishment imposed by the Bar Council of India appears to us to be disproportionate to the misbehaviour of the appellant. May be, if the appellant had appeared before the Bar Council and the Bar Council had not made the order ex parte, the Bar Council may have itself imposed lesser punishment taken into account the mitigating and extenuating circumstances. Be that as it may, after the order of punishment imposed by the Bar Council of India, the appellant’s licence remained suspended till 2nd December, 1998, i.e., for a period of about two months and 15 days. Suspension of the licence for that period would, in our opinion, meet the ends of justice. Since the appellant resumed his practice of law on the 2nd of December, 1998, pursuant to the interim order made by this Court, to once again suspend his licence for whatever period after a lapse of about twenty months, may not be fair. We direct the appellant to remain careful in future and to pay Rs. 5,000/- (Five Thousand) only by way of costs to the first respondent. The costs shall be paid within four weeks from today.
6. With the aforesaid modification in punishment the appeal is disposed of.
7. The Special Leave Petition shall, however, stand dismissed.
