Prahlad Saran Gupta v/s Bar Council Of India

Case No: Appeal (civil) 3588 of 1984

Equivalent Citations: AIR 1997 SC 1338, 1997(2) SCR 499 - Decided On: Feb 26, 1997 -
Bench (Judges): S.C. Agrawal & G.B. Pattanaik

Facts

1. Prahlad Saran Gupta (herein after referred as appellant) was enrolled as an advocate
with the Uttar Pradesh Bar Council and had been a practicing advocate at Ghaziabad.
There was a case entitled Atma Ram Nanak Chand vs Sri Ram Contractor in the court
of civil judge, Ghaziabad and the appellant was representing the decree holder.
2. Rajendra Prasad (herein after referred as complainant) was a partner in Atma Ram
Nanak Chand firm. He had made a complaint on the appellant to the UP State Bar
Council.

The following allegations are made by the complainant against the appellant. They are:

I) Even though the appellant was representing the decree holder, he had colluded
with the judgement debtor and had realized Rs.1600/- from him. Out of which
Rs.1500/- was withheld by him with himself and he did not pay that said amount
to the decree holder for the period of 8 months. In spite of repeated requests for
the said amount, the appellant did not handover the amount to the decree
holder and instead deposited the said amount in the court just to annoy or
harass the decree holder.
II) Rs. 100/- which was left out was taken by the appellant from the judgment
debtor as a fee for seeking time from the high court in order to acquire order of
stay in the proceedings of execution.
III) Further the appellant has obtained Rs. 450/- from the judgement debtor as fees
and expenses for engaging a lawyer named Shri V.K.Gupta at Allahabad to get
stay order in the execution proceeding. The appellant also mentioned the
judgment debtor that he had given a letter regarding the same to the Shri
V.K.Gupta, advocate at Allahabad.
IV) The judgment debtor instead of going to the advocate at Allahabad with a letter,
he sent a reply letter to Shri V.K.Gupta stating the enquiries upon the stay order
but to his surprise the judgment debtor had received a reply to his reply letter
stating that no case of this kind was referred to him from the appellant.
V) The appellant filed a suit against Shri Ramnath Singh on behalf of the
complainant's firm in the Munsif Court with utter recklessness which is ultimately
the wrong court. The firm's new council had take back the complainant from the
wrong court and had to file in the proper court which is Court of Civil Judge.
 VI) The appellant had advanced loan to Sundar Lal, and was alleged in indulging in
money – lending business at very high rate of interest and misconducting himself
as an advocate.

The copy of the complaint was sent to the appellant by the U.P Bar Council for his
explanation but he rejected all the allegations that are made against him in the complaint.
The case was referred by the state bar council to its disciplinary committee but the
committee was unable to complete the said proceedings in the time of 1 year and hence the
matter was sent to Bar Council of India under Section 36B of Advocate's Act, 1961.

The disciplinary committee of the Bar Council of India did not find any kind of merit in the
allegation made in the complaint that the appellant was careless in handling the case of
execution but however the committee found that the appellant as guilty of gross
professional misconduct based on its findings on withholding Rs. 1500/- for the period of 8
months and not returning the said amount to the decree holder and had imposed the
punishment of suspension from practice for a period of 1 year.

Aggrieved by the order passed by the disciplinary committee of the Bar Council of India, the
present appeal was filed by the appellant under Section 38 of the Advocates Act, 1961
before the Supreme Court.

Issues

Whether the appellant is guilty of gross professional misconduct?

Rules
Advocates Act, 1961
35. Punishment of advocates for misconduct:
1. 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.

1A. The State Bar Council may, either of its own motion or on application made to it by any
person interested, withdraw a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

2. The disciplinary committee of a State Bar Council shall fix a date for the hearing of
the case and shall cause a notice thereof to be given to the advocate concerned and
to the Advocate-General of the State.
3. The disciplinary committee of a State Bar Council after giving the advocate
concerned and the Advocate-General an opportunity of being heard, may make any
of 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.

4. Where an advocate is suspended from practice under clause (c) of sub-section (3), he
shall, during the period of suspension, be debarred from practising in any court or before
any authority or person in India.

5. Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-
General may appear before the disciplinary committee of the State Bar Council either in
person or through any advocate appearing on his behalf.

Explanation:

In this section, [section 37 and section 38], the expressions Advocate-General and Advocate-
General of the State shall, in relation to the Union territory of Delhi, mean the Additional
Solicitor General of India.

36B. Disposal of disciplinary proceedings

1. The disciplinary committee of a State Bar Council shall dispose of the complaint
received by it under section 35 expeditiously and in each case the proceedings shall
be concluded within a period of one year from the date of the receipt of the
complaint or the date of initiation of the proceedings at the instance of the State bar
Council, as the case may be, failing which such proceedings shall stand transferred to
the Bar Council of India which may dispose of the same as if it were a proceeding
withdrawn for inquiry under sub-section (2) of section 36.
2. Notwithstanding anything contained in sub-section (1), where on the
commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), any
proceedings in the respect of any disciplinary matter against an advocate is pending
before the disciplinary committee of a State Bar Council, that disciplinary committee
of the State Bar Council shall dispose of the same within a period of six months from
the date of such commencement or within a period of one year from the date of the
receipt of the complaint or, as the case may be the date of initiation of the
proceedings at the instance of the State Bar Council, whichever is later, failing which
such other proceedings shall stand transferred to the Bar Council of India for
disposal under sub-section (1).

S.38 - Appeal to the Supreme Court

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 varying the punishment awarded
by the disciplinary committee of the Bar Council of India)] thereon as it deems fit:

Provided that no order of the disciplinary committee of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving
him a reasonable opportunity of being heard.

Analysis
1st Issue:
Learned Senior Counsel R.B. Mehrotra, who was representing the appellant, has made
certain following submissions:
He submitted that the findings of disciplinary committee are not completely correct and
there are some errors in the findings of the disciplinary committee.

1. Appellant had been held guilty by the disciplinary committee for the professional
misconduct which is based on the charge relating to notice under section 80 of Civil
Procedure Code, 1908. It was alleged that the notice was drafted by the appellant
himself but he shouldn't have drafted the said notice as he was a standing council for
the railways.
2. It was submitted that the above mentioned charge was not filed in the complainant
and was directly put forward before the disciplinary committee of the state bar
council in the application made by the complainant.
3. In addition to this, the disciplinary committee has rejected the request of
examination of hand writing by the expert. The appellant has requested the
disciplinary committee to check whether the handwriting in the notice is same as
that of the handwriting of the appellant but for which the disciplinary committee has
not accepted the said request which is considered as error made by the disciplinary
committee of Bar Council of India. Instead of obtaining an expert opinion regarding
the handwriting, the committee itself declared that the handwriting of the appellant
and the writing in the notice is similar.

The Hon'ble Supreme Court has stated that the error has been made by the disciplinary
committee of Bar Council of India in rejecting the request made by the appellant. The court
relied upon the judgement given in the case of State (Delhi Administration) v. Pali Ram[1],
stating that it is not advisable for the judge to make the comparison of hand writing and it is
better to take expert opinion and assistance regarding the comparison of the hand writing.

Therefore the court held that the appellant was not guilty of serious professional
misconduct just because he drafted the notice under Section. 80 of CPC, 1908 this was
served to the railways. This offence is considered as quasi criminal in nature and hence it
has to be proved beyond reasonable doubt. If the opinion of an expert is considered to
compare the handwriting then it might be proved beyond the reasonable doubt.
The disciplinary committee of the Bar Council of India also passed an order stating that the
appellant is guilty of professional misconduct for the letter sent to the Shri V.K.Gupta. The
Supreme Court held that there was no evidence that Shri Ram (judgement debtor) handed
over the letter to V.K. Gupta and advocate at Allahabad.

Even though the Hon'ble Supreme Court has rejected all the charges that are made against
the appellant, it has found one charge against the appellant established and that was it has
found the appellant guilty of wrongfully withholding Rs. 1500/- with himself, which were
due to the decree holder.

It was contended by the appellant that the said amount was placed with him by both decree
holder and judgement debtor with regarding to the settlement that was negotiated
between both the parties but the appellant has refused to pay the appellant the said
amount because it could be paid only if the joint receipt of both the parties was handed
over to him. This has been contended by the disciplinary committee.

The Supreme Court has held that the anticipated settlement between the parties for
Rs.1500/- was deposited with the appellant, but he did not return the amount either to the
decree holder nor the judgement debtor and retained the amount for himself until he
deposited the said amount in the court which is against the professional ethics and conduct
especially being a senior counsel this kind of conduct is not expected.

Therefore the Supreme Court held that for this ground the appellant was held guilty for
gross professional misconduct and is punished for the same. The punishment of reprimand
is imposed on the appellant for this part of his misconduct to meet the ends of justice.

Conclusion

In my opinion, the judgment passed by the Hon'ble Supreme Court is just and in consistent
with the law. The Supreme Court has examined the laws of professional misconduct which is
ultimately related to the professional ethics. Professional ethics are very important for a
person to follow his professional rules and conduct or duties. In the present case the
appellant was found guilty of wrongfully retaining the amount to himself and not returning
the said amount to the decree holder.

This implies that there has been breach of trust by the appellant that his client has trusted
upon him. In the latter case of Harish Chandra Tiwari v. Baiju[2] stated that there are
different types of misconducts envisaged for a legal practitioner but the gravest professional
misconduct is misappropriation of the client's money. Hence, the Court has rightly held that
for this ground the appellant was held guilty for gross professional misconduct and is
punished for the same.