CASES

1. SHAMBHURAM YADAV VS HANUMANDAS KHATRI

(AIR 2001 SC 2509)
Contributed by Ahmed Siddiqui
BENCH:
K.T. Thomas & Y.K. Sabharwal

FACTS of the case:

A complaint filed by Shambhuram Yadav (appellant) against Hanumandas Khatri

(respondent) advocate before BAR COUNCIL of Rajasthan was referred to the disciplinary
committee of BAR COUNCIL of Rajasthan.

The complaint was that the respondent while appearing as a council in a suit pending in a
civil court wrote a letter to MAHANT RAJGIRI (his client) and stated that his another client
told him that the concerned judge accepts bribe and he has obtained several favourable orders
in his favour and for that reason he (the client) should send him a sum of Rs10,000 , so
through that said client, the suit got decided in favour of MAHANT RAJGIRI.

This letter is not disputed. In reply to the complaint, respondent pleaded that the services of
the Presiding Judge were terminated on account of illegal gratification and he had followed
the norms of professional ethics and brought these facts to the knowledge of his client to
protect his interest and the money was not sent by his client to him.

The state bar council noticed that the respondent admitted to the contents of the letter as true
and come to a conclusion that he has mis-conducted. Court held him guilty of professional
misconduct under section 35 of the Advocates Act, 1961. He was also been suspended from
his practice for a period of 2 years. w.e.f from 15th June 1997.

The respondent challenged the aforesaid order before the Disciplinary Committee of Bar
Council of India. By order dated 31st July 1999, the Disciplinary Committee of Bar Council
of India enhanced the punishment and directed that the name of the respondent be struck off
from the roll of advocates, thus debarring him permanently from the practice.
The respondent filed a review petition under Section 44 of the Advocates Act against the
order dated 31st July 1999. The review petition was allowed and the earlier order modified,
to the extent and his suspension for life was revoked and he was only reprimanded.

But it was held by the court that the earlier committee had considered all relevant facts, and
then came to the conclusion that the advocate was not worthy of remaining in the profession.
The age factor and the factor of a number of years put in by the respondent were taken into
consideration by the committee when removal from the roll of the State Council was directed.

The court stated that the exercise of power of review does not empower a Disciplinary
Committee to modify the earlier order passed by another Disciplinary Committee taking a
different view of the same set of facts. Thus, the impugned order dated 4th June 2000 was set
aside and the original order of Bar Council of India dated 31st July 1999 was restored. The
appeal was allowed in the above terms with costs quantified at ₹ 10,000.00
JUDGMENT:

Legal profession is not a trade or business. It is a noble profession. Members belonging to

this profession have not to encourage dishonesty and corruption but have to strive to secure
justice to their clients if it is legally possible. The credibility and reputation of the profession
depends upon the manner in which the members of the profession conduct themselves. There
is heavy responsibility on those on whom duty has been vested under the Advocates Act,
1961 to take disciplinary action when the credibility and reputation of the profession comes
under a clout on account of acts of omission and commission by any member of the
profession.

In this appeal while issuing notice this Court had stayed till further orders the impugned order
passed by the Disciplinary Committee of the Bar Council of India. We admit the appeal and
heard learned counsel for the parties. On facts, there is not much dispute. The facts material
for the decision of this appeal briefly is as follows:

A complaint filed by the appellant against the respondent, Advocate before Bar Council of
Rajasthan was referred to Disciplinary Committee constituted by the State Bar Council. In
substance, the complaint was that respondent while appearing as a counsel in a suit pending
in a civil court wrote a letter to Mahant Rajgiri his client inter alia stating that his another
client has told him that the concerned judge accepts bribe and he has obtained several
favourable orders from him in his favour; if he can influence the judge through some other
gentleman, then it is different thing, otherwise he should send to him a sum of ₹10,000.00 so
that through the said client the suit is got decided in his (Mahant Rajgiri) favour. The letter
further stated that if Mahant can personally win over the judge on his side then there is no
need to spend money. This letter is not disputed. In reply to complaint, respondent pleaded
that the services of the Presiding Judge were terminated on account of illegal gratification and
he had followed the norms of professional ethics and brought these facts to the knowledge of
his client to protect his interest and the money was not sent by his client to him. Under these
circumstances it was urged that the respondent had not committed any professional
misconduct.
The State Bar Council noticing that the respondent had admitted the contents of the letter
came to the conclusion that it constitutes misconduct. In the order the State Bar Council
stated that keeping in view the interest of the litigating public and the legal profession such a
practice whenever found has to be dealt with in an appropriate manner. Holding respondent
guilty of misconduct under Section 35 of the Advocates Act, State Bar Council suspended
him from practice for a period of two years with effect from 15th June, 1997.

The respondent challenged the aforesaid order before the Disciplinary Committee of Bar
Council of India. By order dated 31st July, 1999, the Disciplinary Committee of Bar Council
of India comprising of three members enhanced the punishment and directed that the name of
the respondent be struck off from the roll of advocates, thus debarring him permanently from
the practice. The concluding paragraph of the order dated 31st July, 1999 reads thus:

“In the facts and circumstances of the case, we also heard the appellant as to the punishment
since the advocate has considerable standing in the profession. He has served as advocate
for 50 years and it was not expected of him to indulge in such a practice of corrupting the
judiciary or offering bribe to the judge and he admittedly demanded Rs.10,000/- from his
client and he orally stated that subsequently order was passed in his client's favour. This is
enough to make him totally unfit to be a lawyer by writing the letter in question. We cannot
impose any lesser punishment than debarring him permanently from the practice. His name
should be struck off from the roll of advocates maintained by the Bar Council of Rajasthan.
Hereafter the appellant will not have any right to appear in any Court of Law, Tribunal or
any authority. We also impose a cost of ₹5,000.00 to the appellant which should be paid by
the appellant to the Bar Council of India which has to be paid within two months."

The respondent filed a review petition under Section 44 of the Advocates Act against the
order dated 31st July, 1999. The review petition was allowed and the earlier order modified
by substituting the punishment already awarded permanently debarring him with one of
reprimanding him. The impugned order was passed by the Disciplinary Committee
comprising of three members of whom two were not members of the earlier committee which
had passed the order dated 31st July, 1999.
The review petition was allowed by the Disciplinary Committee for the reasons, which, in the
words of the Committee, are these:

1. “The Committee was under the impression as if it was the petitioner who had written
a letter to his client calling him to bribe the judge. But a perusal of the letter shows
that the petitioner has simply given a reply to the query put by his client regarding the
conduct of the judge and as such it remained a fact that it was not a offer on the side
of the delinquent advocate to bribe a judge. This vital point which touches the root of
the controversy seems to have been ignored at the time of the passing the impugned
order.
2. The petitioner is an old man of 80 years. He had joined the profession in the year
1951 and during such a long innings of his profession, it was for the first time that he
conducted himself in such an irresponsible manner although he had no intention to
bribe.
3. The Committee does not approve the writing of such a letter on the part of the lawyer
to his client but keeping in view the age and past clean record of the petitioner in the
legal profession the Committee is of the view that it would not be appropriate to
remove the advocate permanently from the roll of advocates. The Committee is of the
considered view that ends of justice would be met in case the petitioner is
reprimanded for the omission he had committed. He is warned by the Committee that
he should not encourage such activities in life and he should be careful while
corresponding with his client.

In view of the aforesaid observations, the review petition is accepted and the earlier
judgment of the Committee dated 31st July, 1999 is modified to the extent and his suspension
for life is revoked and he is only reprimanded."

We have perused the record. The original order has been reviewed on non-existent grounds.
All the factors taken into consideration in the impugned order were already on record and
were considered by the Committee when it passed the order dated 31st July, 1999. The power
of review has not been exercised by applying well settled principles governing the exercise of
such power. It is evident that the reasons and facts on the basis whereof the order was
reviewed had all been taken into consideration by the earlier Committee. The relevant portion
of the letter written by the advocate had been reproduced in the earlier order.
From that quotation it was evident that the said Committee noticed that the advocate was
replying to letter received from his client. It is not in dispute that the respondent had not
produced the letter received by him from his client to which the admitted letter was sent
requiring his client to send ₹10,000.00 for payment as bribe to the concerned judge. We are
unable to understand as to how the Committee came to the conclusion that any vital point in
regard to the letter had been ignored at the time of the passing of the order dated 31 st July,
1999. The age and the number of years the advocate had put in had also been noticed in the
order dated 31st July, 1999.

We do not know how the Committee has come to the conclusion that the respondent `had no
intention to bribe the judge'. There is nothing on the record to suggest it. The earlier order had
taken into consideration all relevant factors for coming to the conclusion that the advocate
was totally unfit to be a lawyer having written such a letter and punishment lesser than
debarring him permanently cannot be imposed. The exercise of power of review does not
empower a Disciplinary Committee to modify the earlier order passed by another
Disciplinary Committee taking a different view of the same set of facts.

The respondent was indeed guilty of a serious misconduct by writing to his client the letter as
aforesaid. Members of the legal profession are officers of the court. Besides courts, they also
owe a duty to the society which has a vital public interest in the due administration of justice.
The said public interest is required to be protected by those on whom the power has been
entrusted to take disciplinary action. The disciplinary bodies are guardians of the due
administration of justice. They have requisite power and rather a duty while supervising the
conduct of the members of the legal profession, to inflict appropriate penalty when members
are found to be guilty of misconduct. Considering the nature of the misconduct, the penalty of
permanent debarment had been imposed on the respondent which without any valid ground
has been modified in exercise of power of review.

It is the duty of the bar councils to ensure that lawyers adhere to the required standards and
on failure, to take appropriate action against them. The credibility of a council including its
disciplinary body in respect of any profession whether it is law, medicine, accountancy or any
other vocation depends upon how they deal with cases of delinquency involving serious
misconduct which has a tendency to erode the credibility and reputation of the said
profession. The punishment, of course, has to be commensurate with the gravity of the
misconduct.
In the present case, the earlier order considering all relevant aspects directed expulsion of
respondent from profession which order could not be lightly modified while deciding a
review petition. It is evident that the earlier Committee, on consideration of all relevant facts,
came to the conclusion that the advocate was not worthy of remaining in the profession. The
age factor and the factor of number of years put in by the respondent were taken into
consideration by the Committee when removal from the roll of the State Council was
directed. It is evident that the Bar Council considered that a high standard of morality is
required from lawyers more so from a person who has put in 50 years in profession.

One expects from such a person a very high standard of morality and unimpeachable sense of
legal and ethical propriety. Since the Bar Councils under the Advocates Act have been
entrusted with the duty of guarding the professional ethics, they have to be more sensitive to
the potential disrepute on account of action of a few black sheep which may shake the
credibility of the profession and thereby put at stake other members of the bar. Considering
these factors, Bar Council had inflicted in its earlier order the condign penalty. Under these
circumstances, we have no hesitation in setting aside the impugned order dated 4th June, 2000
and restoring the original order of Bar Council of India dated 31st July, 1999.

The appeal is thus allowed in the above terms with costs quantified at ₹.10,000.00