# ' :-- \ V. C. RANGADURAI v. D. GOPALAN AND ORS

- **Citation:** [1979] 1 S.C.R. 1054
- **Court:** Supreme Court of India
- **Decided:** 1978-10-04
- **Case number:** Civil Appeal No. 839 of 1978
- **Bench:** V. R. Krishna Iyer, D. A. Desai, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-c-rangadurai-v-d-gopalan-and-ors-7491
- **Pages:** 16

## Headnote

Judicial legisputation, nzeaning of-Punishment under Sec. 35(3)
of the
Advocates Act, 1961, applying the princ;ple of legisputation.
Appeal-Appeal under Sec. 38 of the Advocates Act 1961 interference of
the Supreme Court.
'
'
Disciplinary proceedings-Disciplinary proceedings under the Advocates Act,
1961-Nature and proof of.
Professional ethics of a men1ber of legal fraternity-Relations between a
lawyer and a client explained
D
The appellant was found guilty of gross professional misconduct by the· Di!itE
ciplinary Committee ll of the State Bar Council, Tamil Nadu and \Vas therefore,
debarred from practice as an Advocate for a period of six years. In appeal, the
Bar Council of India upheld the said findings but reduced the period of suspension to one year.
Dismissing the appeal, the Court
Per Iyer, J. (on behalf of Desai, ]. and hin1self)
HELD : 1. Punishment has a functional duality-deterrence and correction.
But conventional penalties have their punitive limitations and flaws, viewed from
the refonnatory angle.
A therapeutic touch, a correctional twist, and a locus
penitentiae, may have rehabilitative impact if only Courts may experiment
F
unorthodoxly but within the parameters of the law. [1057 F-G; 105S El
G
When the Constitution under Art. 19 enables professional expertise to eajoy
a privilege and the Advocates Act confers a monopoly, the goal is not assured
income but commitment to the people whose hunger, privation and hamstrung
hun1an rights need the advocacy of the- profess.ion to change the existing order
into a Human Tomorrow. [1058 B-C]
Justice has correctional edge a socially useful function especially when the
delinquent is too old to be pardoned and too young to be disbarred. Therefore,
a curative not cruel punishment has to be designed in the social setting of the
legal profession.
Punishment for professional misconduct is no exception to this
'social justice' test. [1058 A, EJ
H
In the present case, therefore, the deterrent component of the punitive imposition persuades non-interference with the suspension from practice reduced
"benignly at the appellate level to one year. From the correctional angle a
gesture from the Court may encourage the appellant to turn a new page. He is
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RANGADURAI V. GOPALAN
!055
.not too old to mend his ways. He has suffered a litigativc ordeal, but more
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importantly he has a career ahead. To give him an opportunity to rehabilitate
. himseff by changing his ways, resisting temptations and atoning for the serious
.delinquency, by a more zealous devotion to people's cause like legalt aid to the
poor may be a step in the correctional direction. [1058 E-G]
2. Judicial legisputation is not legislation but application of a given legislation
·to new or unforeseen needs and situations broadly falling within the statutory
provision. In that sense, interpretation is inescapably a
kind of legislation.
legisputation is not legislation stricto sensu but application and is within the
·Court's province. So viewed the punishment of suspension under Sec. 35(3) of
·the Advocates Act serves two .purposes-injury and - expiation. The ends of
justice will be served best in this case by directing suspension plus a provision
for reduction on an undertaking to this Court to serve the poor for al year. Both
are on!ers within this Court's power [1060 F-H]
3. Section 35(3) has a mechanistic texture, a set of punitive pigeon boles,
but \\'ords grow in content \vith time and circumstance, that phrases are :ft.exible
in semantics and the printed text is a set of vessels into which the Court may
pour appropriate judicial meaning. That statute is sick which is
allergic to
change in sense which the times demand and the text does not countermand. That
Court is superficial which stops with the cognitive and declines the creative function of construction. 'Quarrying' more meaning is permissible out of Sec. 3 5 (3)
and the appeal provisions in a brooding background of social justice sanctified
by Art. 3

## Text

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V. C. RANGADURAI
v.
D. GOPALAN AND ORS.
October 4, 1978
[V. R. KRISHNA IYER, D. A. DESAI AND A. P. SEN, JJ.]
Judicial legisputation, nzeaning of-Punishment under Sec. 35(3)
of the
Advocates Act, 1961, applying the princ;ple of legisputation.
Appeal-Appeal under Sec. 38 of the Advocates Act 1961 interference of
the Supreme Court.
'
'
Disciplinary proceedings-Disciplinary proceedings under the Advocates Act,
1961-Nature and proof of.
Professional ethics of a men1ber of legal fraternity-Relations between a
lawyer and a client explained
D
The appellant was found guilty of gross professional misconduct by the· Di!itE
ciplinary Committee ll of the State Bar Council, Tamil Nadu and \Vas therefore,
debarred from practice as an Advocate for a period of six years. In appeal, the
Bar Council of India upheld the said findings but reduced the period of suspension to one year.
Dismissing the appeal, the Court
Per Iyer, J. (on behalf of Desai, ]. and hin1self)
HELD : 1. Punishment has a functional duality-deterrence and correction.
But conventional penalties have their punitive limitations and flaws, viewed from
the refonnatory angle.
A therapeutic touch, a correctional twist, and a locus
penitentiae, may have rehabilitative impact if only Courts may experiment
F
unorthodoxly but within the parameters of the law. [1057 F-G; 105S El
G
When the Constitution under Art. 19 enables professional expertise to eajoy
a privilege and the Advocates Act confers a monopoly, the goal is not assured
income but commitment to the people whose hunger, privation and hamstrung
hun1an rights need the advocacy of the- profess.ion to change the existing order
into a Human Tomorrow. [1058 B-C]
Justice has correctional edge a socially useful function especially when the
delinquent is too old to be pardoned and too young to be disbarred. Therefore,
a curative not cruel punishment has to be designed in the social setting of the
legal profession.
Punishment for professional misconduct is no exception to this
'social justice' test. [1058 A, EJ
H
In the present case, therefore, the deterrent component of the punitive imposition persuades non-interference with the suspension from practice reduced
"benignly at the appellate level to one year. From the correctional angle a
gesture from the Court may encourage the appellant to turn a new page. He is
1
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RANGADURAI V. GOPALAN
!055
.not too old to mend his ways. He has suffered a litigativc ordeal, but more
A
importantly he has a career ahead. To give him an opportunity to rehabilitate
. himseff by changing his ways, resisting temptations and atoning for the serious
.delinquency, by a more zealous devotion to people's cause like legalt aid to the
poor may be a step in the correctional direction. [1058 E-G]
2. Judicial legisputation is not legislation but application of a given legislation
·to new or unforeseen needs and situations broadly falling within the statutory
provision. In that sense, interpretation is inescapably a
kind of legislation.
legisputation is not legislation stricto sensu but application and is within the
·Court's province. So viewed the punishment of suspension under Sec. 35(3) of
·the Advocates Act serves two .purposes-injury and - expiation. The ends of
justice will be served best in this case by directing suspension plus a provision
for reduction on an undertaking to this Court to serve the poor for al year. Both
are on!ers within this Court's power [1060 F-H]
3. Section 35(3) has a mechanistic texture, a set of punitive pigeon boles,
but \\'ords grow in content \vith time and circumstance, that phrases are :ft.exible
in semantics and the printed text is a set of vessels into which the Court may
pour appropriate judicial meaning. That statute is sick which is
allergic to
change in sense which the times demand and the text does not countermand. That
Court is superficial which stops with the cognitive and declines the creative function of construction. 'Quarrying' more meaning is permissible out of Sec. 3 5 (3)
and the appeal provisions in a brooding background of social justice sanctified
by Art. 38 and of free legal aid enshrined by Art. 39A of the Constitution.
[1059 A-Bl
Per Sen (/.)
In an appeal under Sec. 38 of the Advocates Act, 1961 the Supreme Court
would not, as a general rul~ interfere with the concurrent :findings of fact by the
Disciplinary Committee, Bar Council of India and the State Bar Council unless
the findings is based on no evidence or it proceeds on mere conjecture and
unwarranted inferences. [1066 G-H1
When 'a. lawyer has been tried by his peers' the Supreme Court cannot interfere in an appeal with the finding in such a domestic enquiry me!ely because on
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a J e-appraisal of the evidence a different view is possible. In the facts and cirI'
cumst:ances of the case, no other conclusion is possible than the conclusion
reached. There is, therefore no ground for interference with the finding of the
Disciplinary Committee of the Bar Couocil of India. (1067 CD]
2. Disciplinary proceedings before the State Bar Council are sui ge11eris, are
neither civil nor criminal in character and are not subject to the ordinary crimi-
·nal procedural safeguards. The purpose of disciplinary proceedings is not punitive
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but to inquire, for the protection of the public, the Courts and the legal profes-
·5ion into fitness of the subject to continue in the capacity of an advocate.
Findings in disciplinary proceedings must be sustained by a higher degree of
proof than that required in civil suits, yet falling short of the proof re<fllired to
sustain a conviction in a criminal prosecution. There should be convincing pre-
·ponderance of evidence. That tost is clearly fulfilled in the instant case.
[1067-A-BJ
R
3. It is not in accordance with professional etiquette for one advocate to hand
«>ver ru. brief to another to take his place at a hearing (either for the whole or
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SUPREME COURT REPORTS
[1979] 1 s.c.R.
part of the hearing), and conduct the case as if the latter had himself been
briefed, unless the client consents to this course· being taken.
Counsel's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists, his duty ls to advise the client t.hat he ~llould engage some
other lawyer. It is unprofessional to represent con.fiicting interests, except by
express consent given by. all concerned after a full disclosure of the facts.
[1067 D-E]
In the instant case, if there was any conllict of interest and duty the appellant
should have declined to accept the. brief. What is reprehensible is that he not
only accepted the brief, pocketed the money meant for court fees,
and never
filed the suits but in a frantic effort to save himself, he thre\v the entire blame Oil'
his junior. [1068 B·CJ
Nothing should be done by any member of the legal fraternity which might
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tend to lessen in any degree the confidence of the public in the fidelity, honesty
and integrity of the profession. The relation between a lawyer and his client is
highly fiduciary in its nature and of a very delicate, exacting, and confidential
character requiring a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and
confidence which
cannot be delegated without consent. A lawyer when entrusted with a brief, is
expected to follow the norms of professional ethics and try to protect the interests
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of his clients, in relation to whom he occupies a position of trust. The appellant
completely betrayed the trust reposed in him by the complainants in this case.
[1067 F, G·H; 1068 A]
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4. The punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further intetference. In a case 1 ike this, the
punishment has to be deterrent. Any appeal for mercy is
wholly misplaced.
It is a breach of integrity and a lack of probity for a lawyer to wrongfully withhold the money of his client and there was in this case complete lack of candour·
on the part of the appellant. [1068 D, F]
(per contra)
(a) Where/ it is shown that the advocate acted in bad faith towards his client"
in detaining or misappropriating funds of the client, or that the wrong was com-·
mitted or aided. by me.ans of false representations, fraud or deceit, the fact that
the advocate makes restitution to or settlement with the client will not prevent
disbarment especially where restitution was not made until after the commence~
ment of the disciplinary proceedings. It is only an ameliorating circumstance
but does not mitigate the offence involved in the misappropriation, particularly
when the repayment is made under pressure. [1068 H, 1069 A]
(b) When there is disbarment Or suspension from practice, the lawyer must"
prove, if he can, after the expiration of a reasonable length of time, that he
appreciates the significance of his dereliction, that he possesses the good character
necessary to guarantee uprightness and honour in hts pr<>fessional dealings, and
therefore is worthy to be; restored. The burden is on the applicant to establish
that he is entitled to resume the privilege of practising law without restrictions.
There is nothing of the kind in the present case. Even if the Supreme Court
has the powet to make such a direction, in terms of S. 38, the Court has a duty
to act with justice to the profession and the public as well as the appellant seeking reinstatement, and without regard to mere feelings of sympathy for the
applicant1 Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement. [1068 B·D]
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RANGADURAI v. GOPALAN (Krishna Iyer, J.)
10 57
(c) A direction requiring the advocate to undertake free legal aid during the
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period of his suspension would be a contradiction in terms.
Under s.
35(4),
when an advocate is suspended from practice under cl. (c) of sub-s. (3) thereof,
he shall, during the period of suspension be debarred1 from practising
in
any
court or before any authority or person in India. lf the making of such a direction implies the terminatiOn of the order of suspension, on the fulfilment of the
.conditions laid down, no restriction on the right of the advocate to appear before
any Court or authority, 'vhich privilege: he enjoys under s. 30 of the Act, can be
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imposed. [1069 D·FJ
·
The Court directed :
(i) the appellant to pay a sum of Rs. 2,50Q/. to the victim of the mis-
·conduct and produce a receipt (il) give an undertaking as directed viz., accepting
the suspension from practice upto 14th August 1979 and willingness to undertake
work under any legal aid body in Tamil Nadu and convince the Chairman of that
Board to accept his services in any specific place where currently there is an on-
·going project, produce a certificate in this behlllf from the Board and (iii) agree
to do only free legal and for one year as reasonably directed by the Board (and
shall not during that period accept any private engagement) so that the period
-0f sllspension shall stand terminated with effect from January 26, 1979.
[1061 A·D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 839 of 1978.
From the Judgme:it and Order dated 11-3-1978 of the Disciplinary
Committee of the Bar Council of India, New Delhi D.C. Appeal No.
14/75.
G. L. Sanghi and A. T. M. Sampath for the Appellant.
Nemo for the Respondent.
The following Judgments w~re delivered
KR1snNA IYER, J.-We agree wholly with our learned brother Sen,
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J., that the appellant is guilty of gross professional misconduct and
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@serves condign punishme':l.t.
But conventional penalties have their
punitive limitations and flaws, viewed from the reformatory
angle.
A therapeutic touch, a correctional twist, and ,a locus penitentiae, may
have rehabilitative, impact, if only we may experiment unorthodoxly
but within the parameters of the law.
Oriented on this approach and
adopti':l.g the finding of guilt, we proceed to consider the penalty, asG
~urning the need for innovation and departing from wooden traditionalism.
A middle-aged man, advocate by profession, has grossly miscon-
-Oucted himself and dereived a common client.
Going by precedent,
the suspensiro from practice for one year was none too har.;h. Sharp
II
practice by memhers of noble professions deserves even cjisbarment.
The wages of sin is death.
1058
SUPREME COURT REPORTS
[1979] l s.c.R.
A
Even so, justice has a correctional edge, a socially useful function,
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especially when the delinquent is too old to be pardoned and too
young to be disbarred.
Therefore, a curative, not cruel punishme-at
has to be designed in the social setting of the legal profession.
Law is a noble profession, true; but it is also an elitist profession.
Its ethics, in practice, (not in theory, though) leave much
to
be
desired, if viewed as a profession for the people.
When the constitution uTider Article 19 enables professional expertise to
enjoy
a
privilege and the Advocates Act confers a monopoly, the goal is not
assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the profession to chango the existing order into a Human Tomorrow.
This
desideratum gives the clue to the directiaa of the penance
of a
devient geared to correction.
Serve the people free and expiate your
sin, is the hint.
Law's nobility as a profession lasts only so long as the membem
maintain their commitment to integrity and service to the community.
Indeed, the monopoly conferred aa the
legal
profession
by
Parliament is coupled with a responsibility-a responsibility towards
the people, especially the poor.
Viewed from
this
angle,
every
delinquent who deceives his common client deserves to be frowned
upon.
This approach makes it a reproach to reduce the pnnishment,
as pleaded by learned counsel for the appellant.
But, as we have explabed at the start, every punishment, however, has a functional duality--Oeterrence and correction.
Punishment for professional misconduct is no exo~ption to this 'social justice' test.
In the
present
case,
therefore,
from
the punitive
angle, the deterrent component persuades us not to interfere with the
suspension from practice reduced 'benignly' at the
appellate level
to one year.
From the correctional angle, a gesture from the Court
may encourage the appellant to turn a new page.
He is not
too
old to mend his ways.
He has suffered a litigative ordeal, but more
importantly he has a caree.r ahead. To give him an opportunity to
rehabilitate himself by changing his ways, resisting temptations and
atoning for the serious delinquency, by a more zealous devotion to
people's causes like legal aid to the poor, may be a step in the
correctional direction.
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Can these goals be accommodated within the scheme of the
statute ? BenignaTicy beyond the bounds of law are not for judges
to try.
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RANGADURAI v. GOPALAN (Krishna Iyer, !.)
1059
Speaking frankly, Sec. 35(3) has a mechanistic texture, a set of
punitire pigeon holes, but 'we may note that words grow in content
with time and circumstance, that phrases are flexible in semantics,
that the printed text is a set of vessels into which the court may
pour appropriate judicial meani:ig.
That statute is sick which is
allergic to change in sense which the times demand and the text does
not countermand. That court is superficial which stops with the
cognitive and declines the creative function of construction.
So, we
take the view that 'quarrying' more meanbg is permissible out of
Sec. 35 (3) and the appeal provisions, in the brooding background
of social jll'Stice, sanctified by Art. 38, and of free legal aid enshrined
by Art. 39A of the Constitution.
"A statute rarely stands alone.
Back of Minerva was
the brain of Jove, and behi:td Venus was the spume of th~
ocean."
(The Interpretation and Application of Statutes-Read Dickerson
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p. 103)
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Back to the Act. Sec. 3 5 ( 3) veads :
"The disciplinary committee of a State
Bar Council
after giving the advocate concerned and
the
AdvocateGeneral an opportunity of being heard, may make a::iy of
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the following 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 from practice for such period
as it may deem fit;
(d) remove the name of the advocate from the State
roll of advocates.
Sec. 37 provides an appeal to the Bar Council of India.
It
runs :
37(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made (under
section 35) (or the Advocate General of the State)
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may, within sixty days of the date of the communiB
cation of the order to him, prefer an appeal to the
Bar Council of India.
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SUPREME COURT REPORTS
[1979] I s.c.R.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Couacil of India which
may pass such order (including an
order varying
the punishment awarded by the disciplinary committee of tho State Bar Council) thereon as it deems
fit.
Section 38 provides a further, final appeal to the Supreme Court
in these terms :
"Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section
36 or Section 37 (or the Attorney General of India or the
Advocate General of the State concerned, as the case may
be) may, within sixty days of the date on which the order
is communicated to him, prefer an appeal to the Supreme
Court and the Supreme Court may pass such order (including an order varybg tho punishment awarded by the disciplinary committee of the Bar Council of India)
thereon
as it deems fit."( 1)
Section 35(3) (c) enables suspensions of the advocate-whether
conditionally or absolutely, it is left unc1~ar. Section 37(2)
emE
powers the Bar Council of India widely to 'pass such order ..... .
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as it deems fit.'
And the Supreme Court,. under Sec.
38 enjoys
ample and flexible powers to 'pass such order ...... as it deems fit'.
Wide as the power may be, the order must ho germane to the
Act and its purposes, and latitude cannot transcend
those
limits.
Judicial 'Legisputation' to borrow a telling phrase of J. Cohen, (2) is
not legislation but application of a given legislation to new or unforeseen noeds and situations broadly falling within
the
statutory
prov1S1on.
In that sense, 'interpretation is inescapably
a kind of
legislation'.(')
This is not legislation stricto sensu but application,
and is within the court's province.
We have therefore sought to adapt the punishment of suspension
to serve two purposes-injury and expiation.
We think the ends o!
justice will b~ served best in this case by directing suspension plus
a provision for reduction on an undertaking to this court to 5erve
the poor for a year.
Both are orders within this court's power.
(1) The Advocates Act, 1961 (25of1961) pp. 20 & 21 .
(2) The Interpretation and Applicetion of Statutes, Read Dickerson, P. 238,
(3) Ibid. P. 238.
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RANGADURAI v. GOPALAN (Sen, J.)
1061
Tamil Nadu has a well-run free legal aid programme with which
~he Gov·~rnor and Chief Justice of the State are
associated.
The
State Legal Aid Board, working actively with two retired ·Judges of
th~ High Court at the head, may use the services of the appellant
keeping a close watch on his work and relations with poor clients, if
he applies to the Legal Aid Board for giving him such an opportunity,
after getting this court's order as provided below.
Inde~dently of
that, as a token of our inclination to allow the appellant to become
people-minded in his profession, we reduce the
suspension
from
practice upto the 14th of August 1979. With the next Independence
Day we hope the appellant will inaugurate a better career and slough
off old bad habits.
If the appellant gives an undertaking that he
will work under any official legal aid body in Tamil N adu and convinces the Chairman of the State Legal Aid Board, Tamil Nadu, to
aco~pt his services in any specific place where currently there is an
on-goiag project, prodno~s a certificate in this behalf from the Board,
and gives an undertaking to this Court that he will do only free
legal aid for one year as reasonably directed by the Board (and shall
not, during that period, accept any private engagement), his period
of suspension shall stand terminated with effect from
January 26,
1979.
As a condition precedent to his moving this court he must
pay (and produce a receipt) Rs. 2,500/- to the victim of the misconduct.
Atonement cannot be by mere paper pledges but by actual
service to the peop1~ and reparation for the victim. That is why
we make this departure in the punitive part of our order.
Innovation within the frame-work of the law is of the eSS>~nce of
the evolutionary process of juridical development. From that angle,
we thirlk it proper to make a correctional experiment as a super-
, addition to punitive infliction.
The~efore, we make it clear that our
action is less a precedent than a portent.
With the modification made above, we dismiss the appeal.
SEN, J.-This appeal under section 38 of the Advocates Act, 1961
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by V. C. Ra::igadurai is directed against an order of the Disciplinary Committee of the Bar Council of India dated March 11, 1978
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upholding the order of the Disciplinary Committee-II of the
State
Bar Council, Madras dated May 4, 1975 holding him guilty of
professional misconduct but reducing the period of suspension from
practice to ooo year from six years.
cc;, '""
There can be no doubt that the appellant had duped the comH
plainants, T. Deivasenapathy, an old deaf man aged 70 years and
his. aged wife Smt. D. Kamalammal by not filing the suits qn two
1 S-699SCI/78
1062
SUPREME COURT REPORTS
[1979] 1 s.c.R.
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promissory notes for Rs. 15,000/- and
Rs. 5,000/-
both dated
August 26, 1969 executed by their land-lady Smt.. Parvathi .Ariimal,
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who had borrowed Rs. 20,000/- from them, by deposit
of title
deeds.
Admittedly, though the plaint for recovery of the amount due on
the promissory note for Rs. 15,000/- with interest thereon bearing
court fee of Rs. 1,519.25 was returned for presentation to the prcper
court, it was never re-presented.
It is also not denied that though
the appellant had drafted the plaint for recovery of Rs. 5,000/- with
interest no such suit was ever filed.
In spite of this, the appellant
made false representations to
the complainants Deivasenapathy
(P.W. 1), his wife Smt. Kamalannnal (P.W. 3) and the power of
attorney agent of the complainants, D. Gopalan (P.W. 2) that the
suits had been filed and were pending, gave them the various dates
fixed in these two suits, and later on falsely told them that the court
had passed decrees on the basis of the two promissory notes.
On
the faith of snch representation the complainants served a lawyer's
notice dated December 25, 1973 (Ext. P-3) on the debtor Smt. Maragatha=al, to the effect :
"That you are aware of my clients' filing two suits against
you for recovery of Rs. 15,000/- and Rs. 5,000/- with dne
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interest and cost thereon and it is not to state that both the·
suits were decreed as prayed for by my clients in the court
proceedings.
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My clients further say that in spite of the fact that the
suits had been decreed long ago you have not chosen to pay
the amount due under the decrees in question and on the
other hand trying to sell the property by falsely representing
that the original documents have been lost to the prospective
buyers. My clients further state that you are aware of the
fact that my clients are in possession of the original documents relating to the property bearing door No. 41
Shaik
Daood Street, Royapeeth, Madras-14, but deliberately made
false representation as aforesaid with the mala fide intention
to defeat and defraud my clients' amounts due under the
decree.
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My clients emphatically state that you cannot sell the property in question without disclosing the amounts due . to
them ..... ".
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RANGADURAI v. GOPALAN (Sen, !.)
1063
It would thus appear that acting on the representations made by the
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appellant, the complainants called upon the debtor Smt. Milragathammal to pay the amount due under the decrees failing which they had
instructed their lawyer to bring the property to sale. Actually no such
suits had in fact been filed uor auy decrees passed.
It is argued that the finding as to professional misconduct on the
part of the appellant reached by the Disciplinary Committee of the Bar
Council of India is not based on any legal evidence but proceeds on
mere conjectures. It is pointed out that the ultimate conclusion of the
Disciplinary Committee cannot be reconciled with its earlier observation that it was not prepared to attach any credence to the conflicting
a~sertion of Deivasenapathy that he had at first handed over Rs. 855 /-
on December 2, 1970 for filing the suit on the promissory note for
Rs. 5,0001- and then paid Rs. 2,555/- some time in July 1972 for filing
the suit on the promissory note for Rs. 15,000/- which is in conllict
with the allegation in the lawyer's notice dated February 21, 1974
(Ext. R-1) that a sum of Rs. 3,410/- was paid on July 17, 1972 towards court fees and expenses for the filing of the two suits, or that the
various dates marked in the copies of the two plaints, Ext. P-1 and
Ext. P-2. were indeed given by him. It is urged that the Disciplinary
Committee was largely influenced by the fact that the appellant gave
the receipt, Ext. R-7 to K. S. Lakshmi Kumaran, which was found to
be forged. In view of the discrepancies in the testimony of Deivasenapathy, P.W. 1, Smt. Kamalammal, P.W. 3 and their agent, D. Gopalan,
P .W. 2, it was evident that the Disciplinary Committee mainly based
the charge of misconduct on mere suspicion. Lastly, it is said that the
complaint was a false one and was an attempt to pressurize the appellant to persuade his client Smt. Maragathammal to sell the house to
the complainants. We are afraid, the contentions cannot be accepted.
In denial of the charge the appellant pleaded that though he had
drafterl the plaint in the suit to be filed on the basis of the promissory
note for Rs. 5,000/-, he felt that as the debtor Smt. Maragathammal
had consulted him in another matter, it would be better that the complainants engaged some other counsel and he advised them accordingly.
He suggested the names of two or three lawyers out of whom, the complainant• engaged K. S. Lakshmi Kumaran. He denied that the two
promissory notes were handed over to him or that he had received any
amount by way of court fees or towards his fees.
According to him,
K. S. Lakshmi Kumaran was, therefore, instructed to file the suits.
K. S. Lakshmi Kumaran, on the other hand, pleaded that he knew
nothing about the suits but had in fact signed the Vakalat as a Junior
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counsel, as a matter of courtesy at the behest of the appellant.
He
pleaded that he had never met the complainants nor had he been instructed by them to file the suits.
He further pleaded that when the
complainants served him with their lawyer's notice dated February 11,
1974, Ext. R-11, he went and saw the appellant who told him that he
had returned the plaint, which was returned by the court, together with
all the documents to the complainant Deivasenapathy as p.or receipt,
Ext. R-7. On February 21, 1974 the complainants served another
lawyer's notice on both the appellant and K. S. Lakshmi Kumaran. The
appellant and K. S. Lakshmi Kumaran sent their replies to this notice.
The appellant's reply, Ext. R-2, was practically his defence in the present proceedings. K. S. Lakshmi Knmaran in his reply, Ext. R-5,
refers to the lawyer's notice, Ext. R-11, sent by the complainants earlier
and states that when he took the notice to the appellant, he told him
that the papers were taken back from him by the .:omplainant Dievase.napathy who had passed on to him a receipt.
The Disciplinary Committee, in its carefully written order, has
marshalled the entire evidence in the light of the probabilities and accepted the version of K. S. Lakshmi Kumaran to be true. It observes :
"Earlier we referred to the conflict between the two
advocates.
We cannot help observing that we feel there is
want of candour and frankness on the part of RD.
On a
c;ireful consideration of the evidence we see no reason to
reject the evidence of L that he merely signed the Vakalat
and plaint and when the plaint was returned he took the
return and passed on the papers to RD."
It then concludes stating :
"On an overilll view of the evidence we hold that L was
not directly engaged by the parties and that when the plaint
with its annexures was returned, L passed it on to RD. We
also accept L's evidence that when on receipt of the notice
Ext. R-11 he met RD he was infurmed that the case papers
were taken back by P .W. 1 and that some time afterwards
RD gave him the receipt Ext. R-7 .......... .
It mnst be, that when the complainants turned against RD
suspecting his bona fide he denied having had anything to da
in the matter and threw up his junior colleague in the pre>-
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nothmg more to do with the case.
As the clients had no
direct contact with L his statement that he handed over the
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RANGADURAI v. GOPALAN (Sen, J.)
plaint on its retnrn to RD looks probable and likely.
We
accept it. When a notice was issued to him in the matter he
went to RD and RD gave him the receipt Ext. R-7. The receipt purports to be signed by Deivasenapathy and L accepted
it for what it was worth."
1065
In that view, both advocates were found guilty of professional misconduct, but differing in character and different in content. In dealing with the question, it observes :
"As regards RD, the litigants entrusted the briefs to him
whatever their motive.
The record does not establish that
before entrusting the case to L the complainants were introduced by RD to L and L was accepted by them as counsel in
charge of the case."
It condemned both the advocates for their dereliction of duty, but
only reprimanded K. S. Lakshmi Kumaran, the junior advocate, because he never knew the complainants and had signed the vaka1'1t at
the bidding of the appellant, bnt took a serious view of the misconduct
of the appellant, and castigated his whole conduct in no uncertain terms,
by observing :
"Finding himself in difficulties RD miserably failed in his
duty to his fellow advocate very much junior lo him in the
profession and who trusted him.
The conduct of a lawyer
to his brothers in the profession must be characterised by
candour and frankness.
He must keep faith with fellow
members of the bar. While quite properly RD did not accept
the engagement himself we are of the view that he has been
party to the institution of a suit tended merely to harass the
defendants in the suit, with a view to secure some benefit for
the other party-manifestly unprofessional."
It went on to observe :
"The only casualty is RD's professional ethics in what
he might have thought was a gainful yet good samaritan
move. When the move failed and there was no lik~lihood of
his success, the complainants turned against him securing for
their help their power of attorney. Then fear psychosis
appears to have set in, leading RD to totally deny his involvement in the plaint that was filed and let down the junior
whose assistance he sought. We see no other probability
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[1979] l s.c.R.
out of the tangled web of exaggerations, downright denials,
falsehood and fabrications mingled with some truth."
May be, the complainants were not actnated from a purely altruistic motive in lodging the complaint but that does not exonerate the
appellan( of bis conduct. The suggestion that the complaitif was false
one and constitnted an attempt at blackmail is not worthy of acceptance. The property was actnally sold to M. M. Hanifa for Rs. 36,000
by registered sale deed dated August 1,, 1974, while the complaint was
filed in April 1974. We do not see how the initiation of the proceedings would have pressurised the appellant to compel his client Sm1.
Maragathammal to part with the property for Rs. 20,000/- the price
offered by the complainants. It is no doubt true that at one stage they
were negotiating for the purchase of the house of which they were the
tenants but the price offered by them was too low. The Disciplinary
Committee of the Bar Council of India summoned the purchaser and
he stated that from December 1973, he had been trying to purchase
the property. It is also true that in response to the notice dated August
l, 197 4 served by the purchaser asking the complainants to attorn to
him, they in their reply dated August 8, 1974 expressed surprise that
he should have purchased the property for Rs. 36,000/-, when in fact
it was not worth more than Rs. 26,000/-.
It matters little whether the amount of Rs. 3,410/- was paid to th\;
appellant in a lump sum or in two instahnents. Deivasenapathy,
P.W. 1 faltered when confronted with the notice Ext. R-1 and the Disciplinary Committee of the Bar Connell of India has adversely commented on this by
saying that he is not 'an illiterate rustic'
but is an M.I.S.E., a retired Civil Engineer. This by itself does not
disapprove the payment of the amonnt in question. It may be the general power of attorney, D. Gopalan, P.W. 2, made a mistake in instructing the counsel in giving the notice. As regards: the various dates
appearing on the copies of the two plaints, Exts. P-1 and P-2, the complaihants could not have got these dates by tl1emselves unless they were
given by tlle appellant.
In an appeal nnder section 38 of the Act, this Court would not, as
a general rule, interfere with the concurrent finding of fact by tlJe
Disciplinary Committee of the Bar Connell of India and of the State
Bar Council unless the finding is based on no evidence or it proceeds
on mere conjecture and unwarranted inferences. This is not tlle case
here.
Under the scheme of tlle Act, the disciplinary jnrisdiction vests
with the State Bar Council and the Bar Council of India. Disciplinary
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1067
proceedings before the State Bar Council are sui ceneris, are i,eitlier
civil nor criminal in character, and are not subject to the ordinary
criminal procedural safeguards. The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of the public, the
courts and the legal profession, into fitne§S of the subj~ct to continue in
the capacity of an advocate. Findings in 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. There should be convincing preponderance of
evidence.
That test is clearly fulfilled in the instant case.
When 'a lawyer has been tried by his peers', in the words of ~ur
brother Desai J., there is no reason for this Court to interfere in appeal
with the finding in such a domestic enquiry merely because on a reappraisal of the evidence a different view is possible. In the facts and
circumstances of the case, we are satisfied tbat no other conclusion is
possible than the one reached. There is, therefore, no ground for
interference with the finding of the Disciplinary Committee of the Bar
Council of India.
It is not in accordance with professional etiquette for one advocate
to hand over his brief to another to take his place at a hearing (either
for the whole or part of the hearing), and conduct the case as if the
latter had himself been briefed, unless the client consents to this course
being taken. Council's paramount duty is to the client; accordingly
where he forms an opinion that a conflict of interest exists, bis duty
is to advise the client that he should engage some other lawyer. It is
unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts.
Nothing should be done by any member of the legal fraternity
which might tend to lessen in any degree the confidence of the public
in the fidelity, honesty and integrity of the profession. Lord Brougham,
then aged eighty-six, said in a speech, in 1864, that the first great
quality of an advocate was 'to reckon everything subordinate to the
interests of his client'. What be said in 1864 about 'the paramountcy
of the client's interest', is equally true today.
The relation between
a lawyer and his client is highly fiduciary in its nature and of a very
delicate, exacting, and confidential character requiring a high degree of
fidelity and good faith. It is purely a personal relationship, involving
the highest personal trust and confidence which cannot be delegated
without consent. A lawyer when entrusted with a brief, is expected to
follow the norms of professional ethics and try to protect the interests
'Of his clients, in relation to whom he occupies a position of trust. The
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[1979] 1 S.C.Rappellant con.pletely betrayed the trust reposed in him by the complainants.
It is needless to stress that in a case like this the punishment has
to be deterrent. There was in this case complete lack of candour on
the part of the appellant, in that he in a frantic effort to save himself,
threw the entire blame on his junior, K. S. Lakshmi Kumaran. The
evidence on record clearly shows that it was the appellant who had
been engaged by the complainants to file suits on the two promissory
notes for recovery of a large sum of Rs. 20,000/- with interest due
thereon. There was also complete lack of probity on the part of the
appellant because it appears that he1 knew the debtor, Smt. Maragathammal for 7 /8 years and had, indeed, been appearing for her in succession certificate proceedings. If there was any conflict of interest and
duty, he should have declined to accept the brief. What is reprefiensible is that he not only accepted the brief, pocketed the money meant
for court fees, and never filed the suits.
The appeal for mercy appears to be wholly misplaced. It is a
breach of integrity and a lack of probity for a lawyer to wrongtully
withhold the money of his client. In a case of such grave professional
mi~conduct, the State Bar Council observes that the appellant deserved
the punishment of disbarment, but looking to his young age, only suspended him from practice for a period of six years. The Disciplinary
Commjttee of the Bar Connell of India has already taken a lernent
view and reduced the period of suspension from six years to one year,
as in its view the complainants did not suffer by the >uits not being proceeded with because even if they had obtained decrees for money,
they would still have been required to file a regular mortgage snit for
the sale of the property charged.
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In the facts and circumstances of the case, I am of the view that
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the punishment awarded by the Disciplinary Committee of the Bar
Council of India does not warrant any further interference.
I have had the advantage of reading the judgment of my learned
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brother Krishna Iyer for the restitution to the appellant of his right to
practice upon fulfilment of certain conditions. I have my own reservations in the matter, that is, whether any such direction should at all'
be made in the present case.
Where it is shown that the advocate acted in bad faith towards his
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client in detaining or misappropriating funds of the client, or that the·
wrong was committed or aided by means of false representations,.
fraud or deceit, as here, the fact that the advocate makes restitution to
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