We are sad that the Disciplinary Committee of the Bar Council
of India, despite being the statutory body entrusted with the upkeep of the
probity of legal profession in India, opted to treat a very grave
professional misconduct in a lighter vein. The Disciplinary Committee
held an advocate guilty of breach of trust for misappropriating the
asset of a "poor" client.
But having held so,
the Disciplinary Committee has chosen to impose a punishment of suspending the
advocate from practice for a period of three years. The delinquent
advocate filed this appeal under Section 38 of the Advocates Act,100 1961. We told him that in the
event of this Court upholding the finding of misconduct, he should120 show cause why the punishment shall
not be enhanced to removal of his name from the roll of the Bar
Council of the State concerned. Notice on that aspect has been accepted by the learned
counsel for the appellant.
We issued notices to the Bar Council of India and also to the Bar
Council of Uttar Pradesh. Neither has chosen to enter appearance in this
matter and hence we heard the learned counsel for the appellant. Appellant
Harish Tiwari was200 enrolled as an advocate with the Bar Council of the State of Uttar
Pradesh in May 1982 and has been practising since then, mainly in the Courts at
Lakhimpur Kheri District in Uttar Pradesh. Respondent Ramesh engaged the240 delinquent advocate in a land acquisition
case in which the respondent was a claimant for compensation.
The Disciplinary
Committee has described the respondent as "an old, helpless, poor
illiterate person". Compensation of Rs. 8118 for the acquisition of land
of the said Ramesh was deposited by the State in the Court. Appellant applied
for releasing the300 amount and as per orders of the Court he withdrew the said amount
on 2.9.1987. But he did not return it to the client to whom it was payable nor
did he inform the client about the receipt of the amount.
Long thereafter,
when the client came to know of it and after failing to get360 the amount returned by the
advocate, a complaint was lodged by him with the Bar Council of the State for
initiating suitable disciplinary action against the appellant. On 12.7.1988,
appellant filed a reply to the said400 complaint before the Bar Council of the State. He admitted having
been engaged by the respondent as his counsel in the aforesaid land
acquisition case. He also admitted that he had withdrawn a sum of Rs. 8118 from
the Court. But he adopted a defence that he had returned the amount of the client
after deducting his fees and expenses.
On 3.8.1988, an affidavit
purporting to be that of the respondent Ramesh480 was filed by the appellant before
the State Bar Council in which it is stated that a compromise had
been500 arrived at
between him and his client and that no further action needs to be taken
on the complaint filed by the respondent. The Disciplinary Committee of the
State Bar Council was not prepared to act on the said affidavit without
verifying it from the client concerned. Hence, they summoned the respondent and
confronted him with the said affidavit. The respondent totally disowned the
said affidavit, repudiated the alleged compromise between him and the
appellant and denied having received any amount from the appellant-advocate.
The complaint and the proceedings later stood transferred to the Bar
Council of India by virtue600 of Section 36B of the Act. The Disciplinary Committee after
conducting the inquiry, came to the conclusion that the affidavit dated
3.8.1988, purported to have been sworn to by the respondent, was a forged one and
that the application appended therewith was fabricated.
The only condition for varying the punishment awarded by the Bar
Council of India is that if such variation is to prejudicially affect
the appellant, he should be given a reasonable opportunity of being
heard. In the present appeal, we gave notice to the learned counsel for
the appellant to show700 cause why the punishment should not be enhanced to removal
from the roll of the Bar Council of the State.720 Learned counsel for the appellant
addressed arguments on that score.
Three different punishments are envisaged in Section 35 of the Act.
The first is to reprimand the advocate; the second punishment is to suspend the
advocate from practice for such period as it may deem fit; and the third
is to remove the name of the advocate from the State roll of advocates. In
determining the punishment to be awarded by the Disciplinary Committee on proved
misconduct in each800 case, the Committee should weigh various factors. One of them is
the acute need to cleanse the legal profession from those who are prone to
misappropriating the money of the clients. Deterrence is thus a
prominent consideration. This is840 particularly necessary at a time when the legal profession has
become crowded as it is today, without there being any effective
filtering process at the admission stage. Secondly, to keep up the
professional standards, it is necessary that nobody should form the
impression that once a person is admitted to the legal profession, he would
be immune to any punitive900 measures and is free to indulge in nefarious
or detestable activities. The only authority which can effectively maintain
the probity of the legal profession is the Disciplinary Committee of the Bar
Council, either of the State or of India. The proper message which should go to
all members of the legal profession is that they are all being watched,
regarding960 their professional activities, through binoculars by the
Bar Council of the State as well as by the Bar Council of India and that
their Disciplinary Committees would not acquiesce any professional
delinquency with flee bite punishment.
Among the different types1000 of misconduct envisaged for a legal practitioner misappropriation
of the client's money must be regarded as one of the gravest. In his professional
capacity the legal practitioner has to collect money from the client
towards expenses of the litigation, or withdraw money from the Court payable to
the client or take money of the client to be deposited in Court. In all such
cases, when the money of the client reaches his hand, it is a trust. If a
public1080 servant
misappropriates money, he is liable to be punished under the present Prevention
of Corruption Act, with imprisonment which shall not be less than
one year. He is certain to be dismissed from service.
But if an advocate misappropriates money of the client there
is no justification in de-escalating the gravity of the misdemeanour.
Perhaps the dimension of the gravity of such breach of trust would be mitigated
when the misappropriation remained only for a temporary period. There
may be justification to award a lesser punishment in a case where the
delinquent advocate returned the money before commencing the
disciplinary proceedings. In the present case, the misappropriation
remained unabated even after the disciplinary proceedings commenced and
it continued even till1200 now as the delinquent advocate did not care to return even a
single pie to the client.1217
