Professional Ethics and Professional Accounting System

(Semester- X)

Research
Project on
“A Critical Analysis: Mahabir Prasad Singh versus Jacks Aviation Pvt. Ltd. ”

Submitted By:
Siddhant Vyas- 2018/BALLB/02
Maharashtra National Law University, Aurangabad

Submitted to:
Ms Amruta Chavan
(Faculties in charge)
Maharashtra National Law University, Aurangabad
 Table of Contents

Sr. No. Chapter Pg. No.

I. Introduction 2

II. What is Professional Misconduct? 4

III. Courts’ observations on Professional Misconduct 6

IV. The Case Law of 9

Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd.
(1999 1 SCC 37)

V. Critical Analysis of the case and Conclusion 12

2
I
Introduction

In the basic sense, the word 'Professional Misconduct' implies unethical actions. It
implies, in the legal sense, an act intentionally committed by the people involved in
the profession with the wrong intention. For his selfish ends, it implies any action or
actions of an advocate in breach of professional ethics. It leads to 'professional
misconduct' if an act results in a conflict with his profession and renders him
ineligible to be in the profession. In other words, an act that disqualifies an advocate
from continuing in the field of law. In the Advocates Act, 1966, misconduct was not
specified, but misconduct envisages infringement of discipline, although it would not
be possible to set out exhaustively what would constitute misconduct and indiscipline,
which, however, is broad enough to include wrongful omission or commission,
whether done or omitted to be done intentionally or unintentionally. In Black's
Dictionary, misconduct has been described as a transgression of some known and
definite rule of action, a prohibited act, a dereliction of duty, unlawful behaviour, or
inappropriate or incorrect behaviour. Misdemeanours, impropriety, mismanagement,
and offence, but not negligence or carelessness, are synonyms.

In Noratanmal Chaurasia v. M.R., the case, the Supreme Court held that misconduct
was not specified in the Advocates Act, 1966, but misconduct envisages violation of
discipline, although it would not be possible to set out exhaustively what would
constitute misconduct and indiscipline, which, however, is broad enough to include
wrongful omission or commission, whether done or omitted to be done intentionally
or unintentionally. It has been concluded In Re Tulsidas Amanmal Karim that any
behaviour that in any way renders a person unfit for the exercise of his profession or
is likely to influence or embarrass the administration of justice by the High Court or
any other subordinate court may be regarded as misconduct.

In the case of a judge, if a lawyer's behaviour is such that it makes him incapable of
becoming a member of the honourable legal profession and unable to be entrusted
with the responsible duties that a lawyer is called upon to perform, he would be guilty
of errors. Thus, two tests were laid down following this case:— (a) The conduct of the

3
advocate is such that, in order to remain a member of the honourable profession, he
must be treated as unworthy. (b) The lawyer's conduct is such that it must be deemed
unfit to be entrusted with the responsible duties which the lawyer is called upon to
perform. These two tests have been interpreted as disjunctive and thus the fulfilment
of any one of the said criteria will be appropriate to regard the behaviour as
misconduct.

II
What is Professional Misconduct?

Profession is a vocation requiring some significant body of knowledge that is applied

with high degree of consistency in the service of some relevant segment of society, by
Hodge and Johnson. Occupation especially one requiring advanced education and
special training by A. S. Hornby. It is different from other types of jobs, in the sense
that it requires skills and these skills will be improved with experience.

The attributes of a profession as lay down1

1) The existence of a body of specialized knowledge or techniques
2) Formalized method of acquiring training and experience
3) The establishment of a representative organization with professionalism as its
goal.
4) The formation of ethical codes for the guidance of conduct.
5) The charging of fees based on services but with due regards for the priority of
service over the desire for monetary rewards.

A person who carries/undertakes the profession is called a professional. Depending on

the profession a person undertakes, he/she is identified with a special name relevant to
the profession.

Misconduct means a wrongful, improper, or unlawful conduct motivated by

premeditated act. It is an activity of not conforming to prevailing standards or laws or
dishonest or deceitfulness, generally by people entrusted or engaged to act on behalf

1
Dalton E. McFarland, “Principles of Business Management” pg 11

4
of others. The expression professional misconduct in the simple sense means
improper conduct. In law profession misconduct means an act done wilfully with a
wrong intention by the people engaged in the profession. Misconduct signifies any
activity of an advocate in violation of professional ethics for his selfish ends. If an act
creates disrespect to his profession and makes him unworthy of being in the
profession, it amounts to professional misconduct. In other words an advocate which
seeks to fulfil his selfish ends at the cost of his client such act amounts to
disqualification for an advocate to continue in Legal profession.

Misconduct is sufficiently comprehensive to include misfeasance as well as

malfeasance and is applied to the professional people, it include unprofessional acts
even though they are not inherently wrongful.2 The professional misconduct may
consist the fact in any conduct, which tends to bring reproach on the legal profession
or to alienate the favourable opinion which the public should entertain concerning it.
In state of Punjab v Ram Singh3 the Supreme Court held that the term misconduct
may involve moral turpitude, it must be improper or wrong behaviour, unlawful
behaviour, illicit in character, a forbidden act, a transgression of established and
definite rule of action or code of conduct, but not mere error of judgement,
carelessness or negligence in performance of duty.

II
2
Mana Mohamed Ismail vs V. Balarathnam, AIR 1965 Kant 28
3
1992 SCR (3) 634

5
Courts’ observations on Professional Misconduct

The Supreme Court has, in some of its decisions, elucidated on the concept of
‘misconduct’, and its application. In Sambhu Ram Yadav v. Hanuman Das Khatry,4 a
complaint was filed by the appellant against an advocate to the Bar Council of
Rajasthan, that while appearing in a suit as a counsel, he wrote a letter stating that the
concerned judge, before whom the suit is pending accepts bribes, and asked for Rs.
10,000 to bribe and influence the judge to obtain a favourable order. The Disciplinary
Committee, holding that the advocate was guilty if “misconduct”, stated that such an
act made the advocate “totally unfit to be a lawyer.” The Supreme Court, upholding
the finding of the Rajasthan Bar Council held that the legal profession is not a trade or
business.5 Members belonging to the profession have a particular duty to uphold the
integrity of the profession and to discourage corruption in order to ensure that justice
is secured in a legal manner. The act of the advocate was misconduct of the highest
degree as it not only obstructed the administration of justice, but eroded the reputation
of the profession in the opinion of the public.

In another case, Noratanman Courasia v. M. R. Murali6 the Supreme Court explored

the amplitude and extent of the words “professional misconduct” in Section 35 of the
Advocates Act. The facts of the case involved an advocate (appearing as a litigant in
the capacity of the respondent, and not an advocate in a rent control proceeding)
assaulted and kicked the complainant and asked him to refrain from proceeding with
the case. The main issue in this case was whether the act of the advocate amounted to
misconduct, the action against which could be initiated in the Bar Council, even
though he was not acting in the capacity of an advocate. It was upheld by the Supreme
Court that a lawyer is obliged to observe the norms of behaviour expected of him,
which make him worthy of the confidence of the community in him as an officer of
the Court. Therefore, in spite of the fact that he was not acting in his capacity as an
advocate, his behaviour was unfit for an advocate, and the Bar Council was justified
in proceeding with the disciplinary proceedings against him. It may be noted that in
arriving at the decision in the case, the Supreme Court carried out an over-view of the

4
AIR 2001 SC 2509
5
Parmanand Sharma vs Bar Council Of Rajasthan And Anr, AIR 1999 Raj 171
6
(2004) 5 SCC 689

6
jurisprudence of the courts in the area of misconduct of advocates, reiterated that the
term “misconduct” is incapable of a precise definition.7 Broadly speaking, it envisages
any instance of breach of discipline. It means improper behaviour, intentional
wrongdoing or deliberate violation of a rule of standard of behaviour. The term may
also include wrongful intention, which is not a mere error of judgment. Therefore,
“misconduct”, though incapable of a precise definition, acquires its connotation from
the context, the delinquency in its performance and its effect on the discipline and the
nature of duty.8

In N.G. Dastane v. Shrikant S. Shind,9 where the advocate of one of the parties was
asking for continuous adjournments to the immense inconvenience of the opposite
party, it was held by the Supreme Court that seeking adjournments for postponing the
examination of witnesses who were present without making other arrangements for
examining such witnesses is a dereliction of the duty that an advocate owed to the
Court, amounting to misconduct. Ultimately, as it has been upheld and reiterated that
“misconduct” would cover any activity or conduct which his professional brethren of
good repute and competency would reasonably regard as disgraceful or
dishonourable. It may be noted that the scope of “misconduct” is not restricted by
technical interpretations of rules of conduct, this was proven conclusively in the case
of Bar Council of Maharashtra v. M.V. Dahbolkar 10 the facts under consideration
involved advocates positioning themselves at the entrance to the Magistrate’s courts
and rushing towards potential litigants, often leading to an ugly scrimmage to snatch
briefs and undercutting of fees. The Disciplinary Committee of the state Bar Council
found such behaviour to amount to professional misconduct, but on appeal to the Bar
Council of India, it was the Bar Council of India absolved them of all charges of
professional misconduct on the ground that the conduct did not contravene Rule 36 11
as the rule required solicitation of work from a particular person with respect to a
particular case, and this case did not meet all the necessary criteria, and such method
of solicitation could not amount to misconduct. This approach of the Bar council of
India was heavily reprimanded by the Supreme Court. It was held that restrictive

7
Shri Santosh Kumar Sur vs Union Of India & Ors (2006) 6 SCC 794
8
Mani Lal vs Matchless Industries Of India
9
AIR 2001 SC 2028
10
1976 SCR (2) 48
11
Standards of Professional Conduct and Etiquette, Indian Bar Rules 2009

7
interpretation of the relevant rule by splitting up the text does not imply that the
conduct of the advocates was warranted or justified. The standard of conduct of
advocates flows from the broad cannons of ethics and high tome of behaviour. It was
held that “professional ethics cannot be contained in a Bar Council rule or in
traditional cant in the books but in new canons of conscience which will command the
member of the calling of justice to obey rules or morality and utility.” Misconduct of
advocates should thus be understood in a context-specific, dynamic sense, which
captures the role of the advocate in the society at large.

The Advocates Act, 1961 is a comprehensive statute that regulates the conducts of
Legal practitioners and legal education in India. The legislature envisioned the
establishment of Bar Council of India and State Bar Councils thus formed various
disciplinary committees to concordat the misconduct of the advocates. The provision
relating to the admission and enrolment of advocate, the right to practice advocacy are
being provided under the Advocates Act, 1969. Sections 35 to 44 are enumerated
under Chapter V to look out the conducts of the advocated. The statute has conferred
penalizing power to the Bar Council of India to maintain discipline among the
advocates and for the professional and other misconduct. To attract the provision i.e.,
Section 35 of the Act the act of misconduct must not need to be a professional
misconduct in itself. The expression used in the section is Professional or other
misconduct. Since not all events are connected with profession but they may amount
to misconduct for example conviction for a crime even when the crime was not
committed in the professional capacity. At the same time it is to be noted that a mere
conviction is not sufficient to find an advocate guilty of misconduct, the court must
look in to the nature of the act on which the conviction is based to decide whether the
advocate is or is not an unfit person to be removed from or to be allowed to remain in
the profession.12

Misconduct is not restricted to finite variety the connotation professional or other

misconduct has to be read in plain and simple meaning as defined in the Oxford
Dictionary. The implication of misconduct is an act done wilfully with deceitful intent
and this is applied to professional as well as unprofessional acts even when such acts
are not innately wrong. Section 49 of the Advocate Act empowers the Bar Council of
12
An Advocate vs Bar Council Of India and anr AIR 1989 SC 245

8
India to frame rules and standards of professional misconduct. Under the Act, no
person has a right to make advertisement or soliciting; it is against advocate’s code of
ethics. He is also not entitled to any advertisement through circulars, personal
communications or interviews, he is not entitled to demand fees for training and to
use name/service for unauthorized purposes.

III
The case law of Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd.

During the pendency in the court of the Additional District Judge (Shri S.N. Dhingra),
of a civil suit for recovery of possession of a building, the plaintiff/appellant filed an
application under Order 12 Rule 6 CPC for pronouncing of judgment on the basis of
certain admissions in the written statement. The defendant filed objections to the
same. Meanwhile, the Delhi Bar Association passed a resolution dated 15-5-1998.
calling for the boycott, by all its members, of the Court of Shri S.N. Dhingra. When
the application under Order 12 Rule 6 came up for arguments on 21-5-1998, the
advocate for the defendant, without appearing, filed an unusual application under
Section 151 CPC stating that due to the Bar Association resolution, he was bound not
to appear and seeking transfer of the case “Suo motu" by the Additional District
Judge. The Additional District Judge dismissed the advocate's application. on the
ground that there was no provision under Section 151 CPC for the transfer of cases.
The defendant then filed a revision petition before the High Court, which entertained
the b same and stayed proceedings before the trial court. The plaintiff also entered an
appearance and submitted that he had no objection to the case being transferred. The
High Court however did not pass any order and adjourned the matter several times.

On 10-9-1998 the defendant filed a civil miscellaneous petition again seeking transfer
of the case from the court of Shri Dhingra, ADJ "in the event the honourable High
Court is pleased to allow the revision'. The basis for this new application was a
newspaper description of a disgraceful scene in the court of Shri Dhingra, ADJ. The C
Secretary of the Delhi Bar Association had made a shouted demand that the Judge
stop working. The Judge did not stop work and the Secretary then hurled abuse in

9
filthy language at him. Litigants present had protested. The High Court responded
merely by calling for the "comments" of the ADJ. Shri Dhingra about the transfer
application and posted the revision petition to January 1999.

The plaintiff/appellant then filed the present Special Leave Petition challenging the
High Court's order entertaining the revision petition and also the last adjournment.
Allowing the appeal, the Supreme Court held that The High Court committed a
jurisdictional error in entertaining the revision petition filed by the defendant
challenging the order dismissing the application for "Suo motu" transfer of the case.
That order is clearly not revisable by the High Court in view of the specific interdict
embodied in the proviso to Section 115(1) CPC. Under the same sub-section, a High
Court is empowered to call for the records of any case which has been decided by any
court subordinate thereto, if it had exceeded or failed to exercise the jurisdiction
vested in it or had acted illegally or with material irregularity. In such cases, the High
Court has the power to make such order as it thinks fit. The restriction against the
exercise of such a general power has been incorporated in the proviso which was
inserted in the sub-section by the CPC Amendment Act of 1976.

The Apex also held that out of the two clauses in the proviso, the latter clause could
be resorted to only if that order, if allowed to stand, would occasion a failure of justice
or cause irreparable injury to the respondent. Thus, even if such an order passed by
the subordinate court has any illegality or is affected by material irregularity, the High
Court will not interfere unless the said order, if allowed to stand, would occasion a
failure of justice or its effect would be an infliction of irreparable injury to any party.
The judicial function cannot and should not be permitted to be stonewalled by
browbeating or bullying methodology. whether it is by litigants or by counsel. The
judicial process must run its even course unbridled by any boycott call of the Bar, or
tactics of filibuster adopted by any member thereof. High Courts are duty-bound to
insulate judicial functionaries within their territory from being demoralised due to
such onslaughts by giving full protection to them to discharge their duties without
fear. No court is obliged to adjourn a cause because of the strike call given by any.
association of advocates or a decision to boycott the courts either in general or any
particular court. It is the solemn duty of every court to proceed with the judicial.

10
business during court hours. No court should yield to pressure tactics or boycott calls
or any kind of browbeating.

Both the Bench and the Bar are the two inextricable wings of the judicial forum and
therefore the aforesaid mutual respect is the sine qua non for the efficient functioning
of the solemn work carried on in courts of law. If any counsel does not want to appear
in a particular court, that too for justifiable reasons, professional decorum and
etiquette require him to give up his engagement in that court so that the party can
engage another counsel. But retaining the brief of his client and at the same time
abstaining from appearing in that court, that too not on any particular day on account
of some personal inconvenience of the counsel but as a permanent feature, is
unprofessional as also unbecoming of the status of an advocate.

This is not a case where the respondent was prevented by the Additional District
Judge from addressing oral arguments, but the respondent's counsel prevented the
Additional District Judge from hearing his oral arguments on the stated cause that he
decided to boycott that Court forever as the Delhi Bar Association took such a
decision. Here the counsel did not want a case to be decided by that Court. By such
conduct, the counsel prevented the judicial process to have flowed on its even course.
The respondent has no justification to approach the High Court as it was the
respondent who contributed to such a situation. No advocate or a group of them can
boycott the courts or any particular court and ask the court to desist from discharging
judicial functions. At any rate, no advocate can ask the court to avoid a case on the
ground that he does not want to appear in that court. A change of court is not
allowable merely because the other side too has no objection to such change. Or else,
it would mean that when both parties combine together, they can avoid a court and get
a court of their own choice.

11
IV
Critical Analysis of the case and Conclusion

A lawyer has a duty to his client, a duty to his opponent, a duty to the court, a duty to
the community at large and a duty to himself while discharging his professional
assignment. During periods when there are competing arguments, it takes a high
degree of probity and poise to strike a balance to achieve the position of righteous
standing. An attorney is also an agency of the Court that is responsible for the
rendering of sound quality facilities. Deficiency is services of the form of absence
when the problems are scheduled, filing of incomplete and incorrect pleadings, even
illegible for a long time and without personal supervision and proof, the inability to
pay court fees and procedure fees leads to job deficiency. The conduct of an Advocate
typically affects only his clients, although people who are personally affected by the
actions of the advocates or omissions may also bring an action against him in such
circumstances. A prestigious profession with respected values is the legal profession.
It is expected that an advocate would maintain those values. He must comply with the
conduct set out by the Bar Council of India of professional ethics and etiquette. But
the traditions of the profession are not held high, as seen above. These are only a few
decisions that reflect the legal profession's truth. There are hundreds of cases out there
where the proponents do not comply with professional ethics or moral requirements.

In the instant case of Mahabir Prasad v Jacks Aviation, the observation made by the
honourable court is apt in my opinion. The noble profession of advocacy and lawyers
as officers of court have an obligation towards their client, any personal vendetta or
controversy of the Lawyer with the bench representing a client must not affect the
client in anyway. In this case the Advocate’s refusal to appear before the court has
directly affected the client, further his refusal to return the case brief has directly
affected the right of the client to legal representation, and therefore the conduct of the
Advocate would amount to professional misconduct.

Irrespective of the strict legal position, a professional should adopt good practice and
on assignment is taken, he must perform his functions with sincerity, honesty, and
commitment to client. Even in case of honorary assignments accepted, there should

12
not be lacking sincerity honesty towards professional work. If it is felt that the
payment of fees may not be made properly and timely the professional may ask for
advance payment of fee. In that case, there is no Professional misconduct or unethical
action. However, if a job is taken up, without negotiation and time of payment which
is left for decision by mutual consent or trade practices and thereafter work is not
done with sincerity for the reason that fees may not be recovered, this may amount to
delinquency and a professional misconduct. If according to the conduct of the client,
it appears fees may not be forthcoming, the professional may relinquish the job.
However, he should sufficient time, return the documents etc., and also brief the other
professional, if required, by the so that the client is not left in lurch and he may make
arrangement with other professional.

13