Holding

The appellate court held that the advocate was denied a fair hearing as no specific charge was framed and the doctrine of benefit of doubt was not applied, rendering the disciplinary order unsustainable.

Summary

The appellant, an advocate, was alleged to have withdrawn a suit as settled without the client’s instructions, leading the Bar Council of India to suspend him for three years for professional misconduct. The Supreme Court examined whether the disciplinary proceeding complied with principles of natural justice, specifically whether a precise charge was framed and whether the doctrine of benefit of doubt and proof beyond reasonable doubt were applied. The Court found that the appellant was not informed of the exact nature of the alleged misconduct, no specific charge or issues were framed, and the disciplinary committee failed to consider mens rea, bona‑fide belief, or the distinction between negligence and culpable negligence. Consequently, the suspension order was set aside and the matter remitted to the Bar Council of India for a fresh hearing consistent with due‑process requirements.

Issues considered

Whether a specific charge apprising the advocate of the precise nature of the alleged professional misconduct must be framed under the Advocates Act.
Whether the doctrine of benefit of doubt and the requirement of proof beyond reasonable doubt apply in disciplinary proceedings against advocates.
Whether acting in good faith on oral instructions from a person believed to be the client’s authorized agent constitutes professional misconduct, imprudent conduct, or mere negligence.
Whether the disciplinary committee properly considered mens rea, bona‑fide belief, and the appropriate quantum of punishment.
Whether the suspension of the advocate for three years was justified in view of the procedural deficiencies.

Legislation cited

Advocates Act, 1961s. 35, s. 38, s. 42(1), s. 60
Bar Council of India Ruless. Part VII, s. Rule 19, s. Rule 8(1)

Subjects

professional misconductdisciplinary proceedingsAdvocates Actbenefit of doubtnatural justicegood faithnegligenceculpable negligenceBar Council of India

Judgment

;~'·' ;:-~:
., ~,l.~~!lt-
~,.·,' '
:;: .-~

AN ADVOCATE
A
v.
B.B. HARADARA & ORS.

SEPTEMBER 29, 1988

[M.P. THAKKAR AN.D B.C. ·RAY, JJ.] B

Advocate's Act-Sec. 38-Professional misconduct standard of
proof-Required of-Section 35-Procedure to be followed at the
inquiry by Bar Council.

The appellant is an Advocate. Gautam Chand was one of his old
· clients. The_ com_plainant-Re_sp_ondent No. _l engag~d_ the ~P.pellant on. c
- 'being introduced by Gantam Chand to file a Suit against -Shri
~. Anantaraju for recovery of a sum of Rs.30,098_with Court costs and
interest in the Court of City Civil Judge at Bangalore. The appellant
passed on the papers to his junior advocate to file the Suit which he did.
The complainant's allegation is that the matter in dispute in the suit had D
not been sett.led at all and the appellant without the knowledge and
without his instructions filed a memo in the Court to the effect that the
matter has been settled out of Court and accordingly got the suit dismis-
sed and also received half of the institution court fee; about which the
complainant was not aware, nor was he informed by the appellant. The
complainant's allegation is that he was not informed about the dates of E
hearing of the suit; when inquired he was simply told that the case is
posted for filing written-statement where his presence was not neces-
sary. When nothing was heard by the complainant from the appellant
about the progress of his suit, he personally made inquiries and came to
learn to his great surprise that the suit in question had in fact been
withdrawn as settled out of Court. F

The version of the appellant Advocate is that Gautam Ch-.nd, his
-old Client, -had· business ifea1iD.~s with iiie pJaintirls; Haraliara
(Complainant) and the defendant Anantaraju. Anantaraju had also.
executed an agreement on 9.8.80 to sell his house property to Gautam
Chand. He received earnest money amounting to Rs.35,000 from G
Gautam Chand• Anantaraju however did not execute the sale deed
within the specified time. Gautam Chand approached the appellant for
legal advice. The appellant caused the issue of notice to Anantaraju
calling upon him to execute the sale deed. A notice was also issued on
behalf of the complainant calling upon the defendant Anantaraju
demanding certain amounts due on 3 self bearer cheques amounting to· H
361
362, SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Rs.30,098 issued by him in course of their mutual transactions.
A
Gautam Cband and the complainant were friends having no
conflict of interests Gautam Chand instructed the appellant and his
junior Ashok that he was in possession of the said cheques issued by
Anantaraju and that no amount was actually due from Anantaraju to
B Haradara Complainant. Gautam Chand desired Anantaraju to execute
the sale deed. Anantaraju executed the sale deed on 27.11.81 in favour
of Gautam Chand, even though an order of attachment before judg-
ment in respect of the said property was in existence. Consequent on the
execution of the sale deed, the object of the suit was achieved. The
complainant did not at any time object. In this back ground, the appel-
lant had reasons to believe the information re: settlement of dispute
c conveyed by the three together on 9.12.81. Acting on the said informa-
tion, the appellant asked Ashok his erstwhile junior to take steps to
withdraw the suit, which he did on 10.12.81 as per instructions received
from the appellant noted on the docket of the brief.

D ' The State Bar Council, called for the comments of the appellant
relating to the complaint. No charge was framed s.pecifying the nature
and content of the professional misconduct attributed to the appellant.
Nor were any issues framed or prints for determination formulated.
Instead thereof the Bar Council proceeded to record evidence. As the
case could not be concluded within the time limit, the matter came to be
B transferred to the Bar Council of India. The Bar Council of India
addressed itself to the three questions, viz.

(i) Whether the complainant was the person who entrusted the
brief' to the appellant and whether the brief was entrusted by the
complainant to the appellant?
F
(ii) Whether report of settlement was made without instructions
or knowledge of the complainant?

(iii) Who was responsible for reporting settlement and instructions
ol' the cqmplainant? - · ·· ·
0
The Disciplinary Committee of the Bar Council of India after
considering the matter found appellant guilty of professional miscon-
duct and suspended him for practising his profession for 3 years on the
charge of having withdrawn a suit (not settled) without the instructions
of the clients.
H
AN ADVOCATE v. B.B. HARADARA 363

The appellant has filed the appeal u;s 38 of the Advocates Act. A
The following questions arose for consideration by this Court;

(i) Whether a specific charge should have been framed apprising
the appellant of the true nature and content of the professional miscon-
duct asciibed to him;--
B
(iiJ Whether the doctrine of h~nefit of doubt and the need of establish-
ing the basic allegations were present in the mind of the Disciplinary
Authority in recording the finding of guilt or in determining the nature
and extent of the punishment inflicted on him;

(iii) Whether in the absence of the charge and finding of dishon-
est.r against him the appellant could be held guilty of professional mis-
c
I conduct even on the assumption that he had acted on the instructions of
a person not authorised to act ~n behalf of his client if he was acting in
good faith and in a bona fide manner. Would it amount to lack of
prudence or 11on-culpable negligence or would it constitute professional
misconduct. D

Disposing of the appeal, the Court,

HELD: That the appellant was not afforded reasonable and fair
opportunity of showing cause inasmuch as he was not ap_prised of the
exact content of the professional misconduct attributed to him and was· E
not made aware of the precise charge he was required to rebut. [376E-F]

That in recording the finding of facts on the three questions,
referred to above, the applicability of the doctrine of benefit of doubt
and the need for establishing the facts beyond reasonable doubt were
not realized. Nor did the Disciplinary Committee consider the question F
as to whether the facts established that the appellant was acting with
bona Jides or mala [ides, whether the appellant was acting with any .1
oblique and dishonest motive, whether there was any mens rea; whether

l the facts constituted negligence and if so whether it constituted culpable
negligence. Nor has the Disciplinary Committee considered the question
as regards. the quantum of punishment in thr. light of the aforesaid G
considerations and the exact nature of the professional misconduct
established against the appellant. [376F :H:; 377A]

The Court, in view of the fact that "the matter is one of the ethics
of the profession which the law has entrusted to the Bar Council of
India" and it is in their opin_io~_! "a case which must receive due H
'.'.64 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

weight" did not consider it appropriate to examine the matter on merits
~ without first having the opinion of the Bar Council of India.'.[!77DJ ...

Remanding the matter to the Bar Council of India the Court
directed it to consider whether it would constitute an imprudent act, an
unwise act, a neglig~nt act or whether it constituted negligence and if so
B a culpable negligence, or whether it constituted a professional miscon-
duct deserving sevete punishment, even when it was not established or
at least not established beyond reasonable doubt that the conce.rned
Advocate was acting with any oblique or dishonest· motive or with ma/a
fides. [377H; 378A]

L.D. Jaisinghani v. Naraindas N. Punjabi, [1976] 3 S.C.R. 354
c and Re: M. v. Distt. Judge Delhi, [1956] S.C.R. P. 811 (814), referred
to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 316
of i987.
D
From the Judgment and Order dated 3 l. 12. 1986 of the Dis-
ciplinary Committee of the Bar Council of India in B.C.I. Transfer
Case No. 407 of 1985.

S.S. Javali and Raju Ramachandra for the Appellant.
E
Ravinder Bhat, N. Ganapathy and Promod. Swamp for the
Respondents.

The Judgment ofthe Court was delivered by

F THAKKAR, J. A hast of questions of seminal significapce, not
o'nly for the Advocate who has been suspended from practising his
profession for 3 years on the charge of having withdrawn a suit (as
settled) without the instructions from his client, but also for the mem-
bers of the legal profession in general have arisen in this appeaP:

G (.l) Whether a charge apprising him specifically of the precise
nature and character of the professional misconduct ascribed
to him needs to be framed?

(2) Whether in the absence of an allegation or finding: of dis-

'H 1. Appeal under section 38 of the Advocates Act, 1961.
1
AN ADVOCATE v. B.B. HARADARA [THAKKAR, J.] 365
\
honesty or me_ns rea a finding of guilt and a punishment of \A
this nature canoe inflicted oil him? · '-·1
I
tJ

(3) Whether.the allegations and the finding of guilt require to be
proved beyond reasonable doubt?

(4) Whether the doctrine of benefit of doubt applies?

(5) Whether an Advocate·acting bona fide and in good faith on
the basis of oral instructions given by some one purporting to
act .on behalf of his client, would be guilty of professional
misconduct or of an unwise or imprudent act, or negligence
slmpliciter, or culpable negligence punishable as professionai
misconduct? · ~
c

The suit was a suit for recovery of Rs.30,098 (Suit No. 65/81 on
the file of Additional City Civil Judge, Bangalore). It appears that the
complainant had entrusted the brief to the appellant which he in his
turn had entrusted to his junior colleague (respondent No. 2 herein) D
who was attached to his _Office and was practising along with him at his
office at the material time .. At the point of time when the suit was
withdrawn, respondent No. 2 was practising on his own having set up
his separate office. On the docket of the brief pertaining to the suit,
the appellant made an endorsement giving instructions to withdraw
the suit as settled. A sketch was drawn on the back of the cover to E
enable the person carrying the brief to the junior colleague to locate
his office in order to convey the instructions as per the endorsement
made by the appellant. The allegations made by the complainant
against the appellant are embodied in paragraphs l & 2 of his
complaint:
F
l. The petitioner submits that he entrusted a matter to the Sec-
ond Respondent to file a case against Shri s.· Anafltaraju for
recovery of a sum of Rs.30,098 with Court costs and current
interest in Case No. O.S. l965i81 on the file of the City Civil
Judge at Bangalore. The Petitioner submits that the said suit
was filed by the first respondent who was then a Junior of the G
Second respondent. The petitioner submits that the matter in
dispute in the suit was not settled at all and the first respon-
dent without the knowledge and without the instructions of
the petitioner- has- filed a meino sfatlng that the matter is
se\tled out of Court and got the suit dismissed and he has also
received half of the institution court fee within 10 days H
366 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

since the date of the disposal of the suit. The -petitioner s-ub-
A
mits that he has not received either the suit amount or the
refund of court fee and he is not aware of the dismissal of the
suit as settled out of court.

2. The petitioner submits that when the case was posted for
B filing of written statement itself the first respondent has filed
such a memo stating that the suit was settled out of Court.
The petitioner submits that in f!IC_t, the responden_t_s d_id not
even mfor_m th~ _petitioner ab_<Jut t_~e d~_t_es _o!_ h~aring and
when the petitioner asked the dates of hearing the respon-
dents informed the petitioner stating that his presence is not
required in the Court since the case was posted for filing of
c written statement and therefore, the petitioner did not attend
the Court on that day. The petitioner submits that when he
enquired about the further date of hearing the respondents
did not give tbe date and said that they would verify the next
date of hearing since they have not attended the case since the
D case was posted for filing written statement by the defendant.
The petitioner submits that when he himself went to the Court
and verified he found to his great surprise that the suit is
I~
dismissed as settled out of court and latter learnt that even the '

half of the institution court fee is also taken by the first
respondent within lO days.
E
The version of the appellant may now be unfolded:

'( l) One Gautam Chand (R.W. 3) has been a longstanding client
of the appellant. Gautam Chand Iiacibusiriess aealirigs-with -
the plaintiff Haradara and the Defendant Anantataju.
F Besides, Anantaraju executed an agreement dated 9.8.1980
to sell his house property to Gautam Chand. He received
earnest money in the sum of rupees 35 ,000 from Gautam
Chand. Anantaraju, however, did not execute the sale deed
within the stipulated period and during the extended period.
lt was in these circumstances that Gautam Chand (RW 3)
d approached the appellant for legal advice.

(~) lt is the common case of parties that Gautam Chand intro-
duced the complainant Haradara to the· appellant and his
colleague Advocate respondent No. 2.

H (3) The appellant caused the issue of notice dated l.6.19.8 l
AN ADVOCATE v. B.B. HARADARA [THAKKAR, l.] 367

(Ex. R1 t5) on behalf of Gautam Chand addressed to the
A
seller Anantaraju calling upon him to execute the sale dead.
On the same date, a notice was separately issued on behalf of
the complainant Haradara addressed to Anantara ju
demanding certain amounts due on the three ·self bearer
cheques aggregating Rs.30,098 issued by Anantaraju in
course of th.eir mutual transactions. This notice was issued by B
the Advocate respondent No. 2 acting on behalf of the com-
plainant Haradara.

(4) Gautam Chand (RW 3) and Haradara (PW 1) were friends.
Anantaraju was their common adversary. There was no con-
flict of interests as between Gautam Chand and Haradara.
Gautam Chand instructed the appellants and his colleague
c
respondent No·. 2. Ashok, that he was in possession of the
said cheques issued by Anantaraju and that no amount was
actually due from Anantaraju to the complainant Haradara.
Gautam Chand was desirous of stops to induce Anantaraju
to execute the sale deed in his favour. D

(5) A suit being O.S .. No. 1965 of 1981 was instituted on behalf
of the complainant Haradara claiming on amount of
Rs.30,000 an_d odd, from the defendant Anantaraju on the
basis of the aforesaid cheques. It was instituted on 30.6. 1981.
An inter!ocutary application was moved on behalf of Hara- E
dara by respondent No. 2 as his Advocate seeking the attach-
ment before judgment of the immovable property belonging
to the defendant Anantaraju. The property was in fact the
subject of an agreement to sell between Anaiitaraju and
Gautam Chand (RW 3). The Court initially declined to grant
an order of attachment. In order to persuade the Court, cer- F
tain steps were taken through the said Gautan Chand. He
caused the publication of a notice stating that the property in
question was the subject matter of an agreement between
Anantaraju and himself and it should not be dealt with by
anyone. The publication of this notice was relied upon subse-
quently on behalf of the complainant Haradara by his advo-. G
cate (respondent No. 2). Ashok in seeking an order of
attachrn_ent. The Court accepted his submis_sions and passed
the order of attachment.

(6) Subsequently the defendant Anantaraju executed the sale
deed dated 27th Nov., 1981 in favour of Gautam Chand. The H
368 SUPREME COURT REPORTS [1988] Supp. -3 S.C.R.

object of the suit was achieved. The sale deed was in fact
A executed during the subsistance pf the order of attachment
concerning the same property. The plaintiff Haradara has not
objected to it at any time. Consistently, the appellant had
reasons to believe the information of settlement of dispute
conveyed by the three parties togetheron 9.12.1981.
B
(7) Ga,utam Chand (RW 3) and the complainant Haradara acted
in il)te.rest and scoured the attachment of property which was
the subject matter of an agreement to sell in favour of
Gautam Chand. The suit instituted in the name of the
complainant Haradara was only for the benefit of Gautam
Chand by reference to his interest in the property.
c
(8) The appellant conveyed information of the settlement of dis-
pute by his note made on the docket. He drew a diagram of
·the location of residence of the respondent No. 2 Ashok
Advocate .. (Ex. R:lA at· page 14 Additional Documents).
D The papers , were delivered to respond.en! No. 2 Ashok
Advocate.by Gautam Chand (PW 3).

(9) After satisfying himself, respondent No. 2 Ashok advocate \
i
appeared in Court on 10.12.81 and filed a Memo prepared in
'his handwriting recording the fact of settlement of dispute
E and seeking withdrawal of the suit. The Court passed order
dated 10.12.1981 dismissing the suit, O.S. No. 1965 of 1981.

( 10) Even though the plaintiff Haradara gained knowledge of
the disposal of suit, he did not meet the appellant nor did he
address him for over 1-1/2 years until May, 1983. He did not
F also immediately apply for the restoration of suit. An appli-
cation for restoration was filed on the last date of limitation
on 11.1.1982. The application Misc. 16 of 1982 was later
allowed to be dismissed for default on 30.7.1982. It was
later sought to be revived by application Misc. No. 581 of
1982. Necessary orders were obtained on 16.7.1988. Thus
G Misc. 16 of 1982 (Application for restoration of suit) is
pending in Civil Court.

• On a survey of the legal landscape in the area of disciplinary proqeed-
ings this scenario emerges:
H ( l) In exerc~se of P!J.wers :mder section 35 contained in Chapter
AN.ADVOCATE v. B.B. HARADARA {THAKKAR, J.] 369

V entiiied "conduct of Advocates", on receipt- of a
A
complaint against an Advocate (or suo mo tu) if the State Bar
Council has 'reason to believe' that any Advocate on its role
has been guilty of "professional or other misconduct". Disci-
plinary proceeding may be initiated against him.

(~) Neither section 35 nor any other provision of the Act defines B
the expression 'legal misconduct' or the ~xpression 'mis-
conduct'.

(3) The Disciplinary Committee of the State Bar Council is au-
thorised to inflict punishment, including removal of his name i
, I
from the rolls of the Bar Council and suspending him from
practise for a period deemed fit by it, after giving the Advo- c ''
cate concerned and the 'Advocate Genera!' of the State an
opportunity of hearing.

(4) While under section 42(1)- of the Act the Disciplinary Com-
mittee has been conferred powers vested in a Civil Court in D
respect of certain matters including summoning. and enforc-
ing attendance of any person and examining himon oath, the
Act which enjoins the Disciplinary Committee to "afford an
opportunity of hearing' (Vide Sec. 35) to the Advocate does
not prescribe the procedure to be followed at the hearing.
E
(5) The procedure to be followed in an Enquiry under Section 35
is outlined--fo-Part VII of the B-ar Coundl of Ind.ia-Ruies
( 1) made under the authority of section 60 of the Act.

(6) Rule 8( 1) of the said Rules enjoins the Disciplinary Commit-
tee to hear the concerned parties that is to say the com- F
plain~nt and the concerned Advocate as also the Attorney
General or the Solicitor General or the Advocate General. It
also enjoins that if it is considered appropriate to take oral
evidence the procedure of the trial of civil suits shall as far as
possible be followed (2).
G
At this juncture it is appropriate to articulate some basic princi-
ples which must inform the disciplinary proceedings against members
of the legal profession in proceedings under Section 35 of'ilie Advo-
cates Act, read with the relevant Rules:
1. Published in Gazette of India on · Sep.!_~mbe_r 6, 1975 in Part III Section 4
(pages 1671to1697). H
370 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

(i) essentially· the proceedings are quasi-criminal in character
A
inasmuch as a Member of the profession can be visited with penal
consequences which affect his right to practice the profession as
also his honour; under Section 35(3)(d) of the Act, the name of
the Advocate found guilty of professional or other misconduct
can be removed from the State Roll of Advocates. This extreme
B penalty is equivalent of death penalty which is in vogue in cri-
minal jurisprudence. The Advocate on whom the penalty of his
name being removed from the roll of Advocates is imposed
would be deprived of practising the profession of his choice,
would be robbed of his means of livelihood, would be stripped of
the name and honour earned by him in the past and is liable to
tiecome a social aparthied. A disciplinary proceeding by a statu-
c tory body of the Members of the profession which is statutorily
empowered to impose a punishment including a punishment of
such immense proportions in quasi-criminal in character;

(ii) .as a logical corollary it follows that the Disciplinary Com-
D 'mittee empowered to c,011duct the enquiry and to inflict the
punishment on behalf of the body, in forming an opinion must be
guided by the doctrine of benefit of doubt and is under an obliga-
tion to record a finding of guilt only upon being satisfied beyond
reasonable doubt. It would be impermissible to reach a concfu-
sion on the basis of preponderence of evidence or on the basis of
E surmise, conjucture or suspicion. It will also be essential to con-
sider the dimension regarding mens rea;

This proposition is hardly bpen to doubt or debate particularly
having regard to the view taken by this Court in L.D. Jaisinghani v.
Naraindas N. Punjabi, [1976) 3 SCR 354 wherein Ray, CJ., speaking
f for the Court has observed:
"In any case, we are left in doubt whether the complain-
ant's version, with which he had come forWard with consid-
erable delay was really truthful. We think that, in a case of
this nature, involving possible disbarring of the advocate
concerned, the gviderzce shQuld be of a character which
G
2. Rule 8(1) "The Disciplinary Committee shall hear tl)e ILttorney General
·or the Solicitor General of India or the Advocate General, as the case may
be or their Advocate, arid parties or their Advocate_,-~- they desire to be'
heard, and determine the matte_r on documents and affidaVits unless it is of
the opinion that it should be in the interest of justice to permit cross exami-
nation of the deponents or to.tilke oral evidence, in which case the procedure
H for the trial of civil suits, shall as far as possible be followed.·"

,.
. ' ,.~, .
AN ADVOCATE v. B.B. HARADARA [THAKKAR, J.J 371 ··

should leave no reasonable doubt about guilt. The Disci-
0

plinary Committee h ad not only found the appellant guilty
A
but had disbarred him permanently."
(Emphasis added).

(iii) in the event of a charge of negligence being levelled against
an Advocate, the question will have to be decided whether negli- B
gence simpliciter would constitute misconduct. It would a!so_
have to be· considered whether the standard expected from an
Advocate would have to answer the test of a reasonably equip-
ped prudent practitioner carrying reasonable workload. A line
will have to be drawn between tolerable negligence and culpable
negligence in the sense of negligence which can be t'.eated as
professional misconduct exposing a Member of the profession to c
punishment in the course of disciplinary proceedings. In forming
the opinion on this question· the standards of professional con-
duct and etiquette spelt out in Chapter 2 of Part VI of the Rules
governing Advocates, framed under Section 60(3) and Section
49(1)(g) of the Act, which form a part of the Bar Council Qf India D
Rules may be consulted. As indicated in the preamble of the
Rules, an Advocate shall, at all times compose himself in a man-
ner befitting his status as an Officer of the Court, a privileged
member of the community and a gentleman bearing in mind what
may be lawful and moral for one who is not a member of the bar
may still be improper for an Advocate and that his conduct is E
required to conform to the rules relating to the duty to the Court,
the duty to the client, to the opponent, and the duty to the
colleagues, not only in letter but also in spirit.

It is in the light of these principles the Disciplinary Committee would
be required to approach the question as regards the guilt or otherwise F
of an Advocate in the context of professional misconduct levelled
against him. In doing so apart from conforming to such procedure as
may have been outlined in the Act or the Rules, the Disciplinary
Authority would be expected to exercise the power with full conscious-
ness and awareness of the paramount consideration regarding princi-
ples of natural justice and fair play. G
The State Bar Council, after calling for the comments of the
appellant in the context of the complaint, '.straightaway proceeded to
record the evidence of the parties. No charge was framed specifying
the nature and co_ntent of the professional misconduct attributed to the
H
372 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

appellant. Nor were any issues framed or points for determination
A
formulated. The Disciplinary Committee straightaway proceeded to
record evidence. As the case could not be concluded -within the pre-
scribed time limit the matter came to be transferred to the Bar Council
of India which has heard arguments and. rendered the order under
appeal.
B
The questions which have surfaced are:

{I) Whether a specific charge should have been framed appris-
ing the appellant of the true nature and content of the pro-
fessional misconduct ascribed to him?

c (2) Whether the doctrine of benefit of doubt and the need for
establishing the basic allegations were present in the mind of
the Discipiinary Authority in recording. the finding of guilt
or in determining the nature and extent of the punishment
inflicted on him?
D
(3) Whether in the absence of the charge and finding of dishon-
esty against him the appellant could be held guilty of profes-
sional misconduct even on the assumption that he had acted
on the instructions of a person not authorised to act on be-
half of his client if he was acting in good faith and in a bona
fide manner. Would it amount to lack of prudence or non-
culpable negligence or would it constitute professional
misconduct?

Now so far as the procedure followed by the State Bar Council at the
Enquiry against the appellant, is concerned it appears that in order to
F enable the concerned Advocate to defend himself properly, an ap-
propriate specific charge was required to be framed. ·No doubt ii£
Act does not outline the procedure and the Rules do not prescribe the
framing of a charge. But then even in a departmental proceeding in an
enquiry against an employee, a charge is. always framed. Surely an- -
Advocate whose honour and right to earn his livelihood are at stake
G can expect from his own professional brethern, what an employee
expects from his employer? Even if the rules are silent, the paramount
and overshadowing considerations of fairness would demand the fram-
ing of a charge. In a disciplinary proceeding initiated at the. level of this
Court even though the Supreme Court Rules did not so prescribe, in
re: Shri 'M' an Advocate of the Supreme Court oflndia [1956] SCR page
H 811 (814) this Court framed a charge after making these observations:
::~-
'G- '¥,"'f~+,,•
"•if

AN ADVOCATE v. B.B. HARADARA [THAKKAR, J.]

'·We treated the enquiry in Chambers as a preliminary en-
A
quiry and heard arguments on both sides with reference to
the matter of that enquiry. We came to conclusion that this
was not a case for discharge at that stage. We accordingly
reframed the charges framed by our learned brother,
Bhagwati J., and added a fresh charge. No objection has .
been taken to this course. But it is as well to mention that, B
in our opinion, the terms of Order -IV, rule 30 of the
Supreme Court Rules do not preclude us from adopting
this course, including the reframing of, or adding to, the
charges specified in the original summons, where the mate-
rial at the preliminary enquiry justifies the same. The fresh
enquiry before us in Court has proceeded with reference to
the following charges as reframed and added to by us." c

It would be extremely difficult for an Advocate facing a disciplinary
proceeding to effectively defend himself in the absence of a charge
framed as a result of application of mind to the allegations and to the
question as regards what particular elements constituted a specified D
head of professional misconduct.

The point arising in the context of the non-framing of issues has
also significance. Asdlsc_ussecl earlier_ Rule -ii(ffenf~ins iliat "the proce-
dure for the trial of Civil suits, shall as far as possible be followed." i
Framing of the issues based on the pleadings as in a Civil suit would be E I
of immense utility, The controversial matters and substantial questions I
would be identified and the attention focussed on the real and substan-
tial factual and legal matters in contest. The parties would then be-
come aware of the real nature and content of the matters in issue and
would come to know (1) on whom the burden rests (2) what evidence
should be adduced to prove or disprove any mailer (3) to what end F
cross examination and evidence in rebuttal should be directed. When
such a procedure is not adopted there exists inherent danger of miscar-
riage of justice on account of virtual denial of a fair opportunity to
meet the case of the other side. We wish the State Bar Council had
initially framed a charge and later on framed issues arising out of the
pleadings for the sake of fairness and for the sake of bringing into G
forefront the real controversy.

In the light of the foregoing discussion the questions arising in
the present appeal may now to be examined. In substance the charge
against the appellant was that he had withdrawn a suit as-settled with-
out the instructions from the complainant. It w~ not the case o_!_ the H
374 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R:

complainant that the appellant had any dishonest motive or that iie-
A had acted in the matter by reason of lack of probity or by reason of
having been won over by the other side for monetary considerations or
otherwise. The version of the appellant was that the suit which had
been withdrawn had been instituted in a particular set of circumstances
and that the complainant bad be.en .introc!uced to the appellant for
B purposes of the fostitution of the suit by an old client of his viz. RW 3
Gautam Chand. The appellant was already handling a case on behalf
of RW 3 Gautam Chand against RW 4 Anantharaju. The decision to
file a suit on behalf of the complainant against RW 4 Anantharaju was
taken in the presence of R W 3 Gautam Chand. It was at the instance
and inspiration. of RW 3 Gautam Chand that the suit had been
instituted by the complainant, but really he was the nominee of
c Gautam Chand and that the complainant himself had no real claim on
his own. It transpires from the records that it was admitted by the
complainant that he was not maintaining any account books in regard
to the business and be was not an Income-tax assessee. In addition, the
complainant (PW 1) Haradara himself has admitted in his evidence
D that it was Gautam Chand who had introduced him to the appellant,
and that he was in fact taken to the office of the appellant for filing the
said suit, by Gautam Chand. It was this suit which was withdrawn by
the appellant. Of course it was withdrawn without any written instruc-
tions from the complainant. It was also admitted by the complainant
that he knew the defendant against whom he had filed the suit for
E recovery of Rs.30,000 and odd through Gautam Chand and that he did
not know the defendant intimately or closely. He also admitted that
the cheques used to be passed in favour of the party and that he was
not entitled to the entire amount. He used to get only commission.

Since even on the admission of the complainant himself he was
F taken to the office of the appellant for instituting the suit, by RW 3
Gautam Chand, and old client of the appellant whose dispute with the
defendant against whom the complainant had filed the suit existed at
the material time and was being handled by the appellant. The defence
of the appellant that he had withdrawn the suit in the circumstances
mentioned by him required to be considered in the light of his admis-
G sions. The defence of the appellant being that the suit was withdrawn
under the oral instructions of the complainant in the presence of R W 3
Gautam Chand and RW 4 Anantharaju and inasmuch as RWs 3 and 4
supported the version of the appellant on oath, the matter was
required to be examined in this background. Assuming that the evi-
dence of the appellant corroborated by RWs 3 and 4 in regard to the
H_ presence of the complainant was not considered acceptable, the ques-
AN ADVOCATE v. B.B. HARADARA [THAKKAR, J.J 375

tion would yet arise as to whether the withdrawal on the part of the
A
appellant as per the oral instructions of RW 3 Gautam Chand who &ad
taken the complainant to the appellant for instituting the suit, would
amount to professional misconduct. Whether the appellant had acted
in a bona fide manner under the honest belief that RW 3 Gautam
Chand was giving the instructions on beh-alf of the complainant
required to be considered. If he had done so in a bona fide and honest B
belief would it constitute professional misconduct, particularly having
regard to the fact that no allegation regarding corrupt motive was
attributed or established? Here it has to be mentioned that the appel-
lant had acted in an open manner in the sense that he had in his own
hand made endorsement for withdrawing the suit as settled and seni the
brief to his junior colleague. If the appellant had any obiique motive or C
dishonest intention, he would not have made the endorsement in his
own hand.

No doubt Rule 19 contained in Section 2 captioned 'Duty to the
clients' provides that an Advocate shall not act on the instructions of
any person other than his client or his authorised agent. If, therefore, D
the appellant had acted under the instructions of RW ~Gautam Chand
bona fide believing that he was the authorised agent ·to give instruc-
tions on behalf of the client, would it constitute professional miscon-
duct? Even if RW 3 was not in fact an authorised agent of the
complainant, but if the appellant bona fide believed him to be the
authorised agent having regard to the circumstances in which the suit E
came to be instituted, would it constitute professional misconduct? Or
would it amount to only an imprudent and unwise act or even a negli-
gent act on the part of the appellant? These were questions which
directly arose to which the Committee never addressed itself. There is
also nothing to show that the Disciplinary Committee has recorded· a
finding on the facts and the conclusion as regards the guilt in full F
awareness of the docirine of benefit of doubt and the need to establish
the facts and the guilt beyond reasonable doubt. As has been
mentioned earlier, no charge has been formulated and framed, no
issues have been framed. The.attention of the parties was not focussed
on what were the real issues. The appellant was not specifically told as
to what constituted professional misconduct and what was the real G
content of the charge regarding the professional misconduct against
him.

In the order under appeal the Disciplinary Committee has
addressed itself to three questions viz.
H.
376 SUPREME COURT REPORTS [19881 Supp. 3 s.c-.R..

(i) Whether the complainant was the person who entrusted the
A
brief to the appellant and whether the brief was entrusted by the
complainant to the appellant?

(ii) Whether report of settlement was made without instruction
or knowledge of the complainant?
B
(iii) Who was responsible for reporting settlement and instruc-
tions of the complainant? ·

In taking the view that the appellant had done so probably with a view
c to dear the cloud of title of RW 3 as reflected iii paragraph 22 quoted
herein; the Disciplinary Committee was not only making recourse to
c conjucture, surmise and presumption on the basis of suspicion but also
attributing to the appellant a motive which was not even att1ibuted by
the complainant and of which the appellant was not given any notice to
1 enable him to meet the charge:

D "It is not possible to find out as to what made PW 2 to have
done like that. As already pointed out the house property
which was under attachment had been purchased by RW.3
during the subsistence of the attachment. Probably with a
view to clear the cloud of title of RW 3, PW 2 might have
done it. This is only our suspicion. Whatever it might be,"it ·
E is clear that RW 2 had acted ille_gally in directing RW 1 to
report settlement."

In our opinion the appellant has not been afforded reasonable
and fair opportunity of showing cause inasmuch as the appellant was ·
not apprised of the exact content of the professional misconduct
F attributed to him and was not made aware of the precise charge he was
required to rebut. The conclusion reached by the Disciplinary Com-
. mittee in the impugned order further shows that in recording the find-
ing of facts on the three questions, the applicability of the doctrine of
benefii of doubt and need for establishing the facts beyond reasonable
doubt were not realised. Nor did the Disciplinary Committee .consider.
G the question as to whether the facts established that the appellant was
acting with bona /ides or with ma la fides, whether the appellant was
acting with any oblique or.dishonest motive, whether there was any
mens rea, whether the facts constituted negligence and if so whether it
constituted culpable negligence. Nor has the Disciplinary Committee
considered the question as regards the quantum of punishment in the
H light of the aforesaid considerations and the exact nature of the profes-
AN ADVOCATE v. B.B. HARADARA [THAKKAR, J.] 377

sional misconduct_est~lished against the appellant. The impugned
A
order passed by the Disciplinary Committee, therefore cannot be
sustained. Since we do not consider it appropriate to examine the
matter on merits on our own without the benefit of the finding
recorded by the Disciplinary Committee of the apex judicial body of
the legal profession, we consider it appropriate to remit the matter
back to the Disciplinary Committee. As observed by this Court in B
O.N. Mohindroo v. The District Judge, Delhi andAnr., Supreme Court
Bar Association, I1971] 3 SCC 5 in paragraph 23 quoted hereinbelow,
we have no doubt that the Disciplinary Committee will approach the
matter with an open mind:

"From this it follows that questions of professional conduct
are as open as charges of cowardice against Generals for
c
reconsideration of the conviction of persons convicted of
crimes. Otherwise how could the Hebron brothers get their
conviction set aside after Charles Peace confessed to the
crime for which they were charged and held guilty?"
D
We must explain why we consider it appropriate to remit the matter
back to the Bar Council of India. This matter is one pertaining to the
ethics of the profession which the law has entrusted to the Bar Council
·of India. It is their opinion of a case which must receive .due weight
because in the words of Hidayatullah, CJ, in Mohindroo's case:
E
"This matter is one of the ethics of the profession which the
law has entrusted to the Bar Council of India. It is their
opinion of a case which must receive due weight."

It appears to us that the Bar Council of India must have an opportunity
to examine the very vexed and sensitive question which has arisen in F
the present matter with utmost care and consideration, the question
being of great importance for the entire profession. We are not aware
of any other matter where the apex body of the profession was
required to consider whether the bona fide act of an Advocate who in
good faith acted under the instructions of someone ciosely connected
with his client and entertained a bona fide belief that the instructions G
were being given under the authority of his client, would be guilty of
misconduct. It will be for the Bar Council of India to consider whether
it would constitute an i~prudent act, an unwise act, a negligent act or
whether it constituted negligence and if so a culpable negligence, or
whether it constituted a professional misconduct deserving severe
punishment, even when it was not established or atleast not H
378 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

established beyond reasonable doubt that the concerned Advocate was
A acting with any oblique or dishonest motive or with ma/a fides. This
question will have to be determined in the light of the evidence and the
surrounding circumstances taking into account the doctrine of benefit
of doubt and the need to record a finding only upon being satisfied
beyond reasonable doubt. In the facts and circumstances of the pre-
B sent case, it will also be necessary to re-examine the version of the
complainant in the light of the foregoing discussion keeping in mind
the admission made by the complainant that he was not maintaining
. any books of accounts and. he was not an Income-tax assessee and yet
he was the real plaintiff in the suit for Rs.30,000 and odd instituted by
him, arid in the light of the admission that it was RW 3 Gautam Chand
who had introduced him to the appellant and that he was in fact taken
q to the office of the appellant, for filing the suit, by RW 3 Gautam-
Chand. The aforesaid question would arise even if the conclusion was
reached that the complainant himself was not present and had not
given instruction.s and that the appellant had acted on the instructions
of RW 3 Gautam Chand who had brought the complainant to the
D appellant's office for instituting the suit and who was a close associate
of the complainant. Since all these aspects have not been examined at
the level of the Bar Council, and since the matter raises a question of
principle of considerable importance relating to the ethics of the pro-
fession which the law has entrusted to the Bar Council of India, it
would not be proper for this Court to render an opinion on this matter
E without the benefit of the opinion of the Bar Council of India which
will accord close consideration to this matter in the light of the
perspective unfolded in this judgment both on law and on facts. We
are reminded of the high degree of fairness with which the Bar Council
of India had acted in Mohindroo's case. The Advocate concerned was
suspended from practice for four years. The Bar Council had dismissed
p the appeal. Supreme Court had dismissed the Special Leave Petition
summarily. And yet the whole matter was reviewed at the instance of
the Bar Council and this Court was persuaded to grant the review. A
passage extracted from Mohindroo's case deserves to be quoted in this
connection:

G "37. We find some unusual circumstanc~s facing us. The
entire Bar of India are of the opinion that the case was not
as satisfactorily proved as one should be and we are also of
the same opinion. All processes of the Court are intended
to secure justice and one such process is, the power of
review. No doubt frivolous reviews are to be discouraged
H and technical iule.s have been devised to prevent persons
AN ADVOCATE v. B.B. HARADARA [THAKKAR, J.] 379
[
. from reopening decided cases. But as the disciplinary com- A
mittee themselves observed there should not be too much
technicality where professional honour is involved and if
there is a manifest wrong done, it is never too late w undo
the wrong. This Court possesses urider the Constitutio-n a
special power of review and further may pass any order to
do full and effective justice. This Court is moved to take B
action and the Bar Council of India and the Bar Associa-
tion of the Supreme Court are unanimous that the appel-
lant deserves to have the order disbarring him from
practice set aside.··

We have therefore no doubt that upon the matter being remitted c
to the Bar Council of India it will be dealt with appropriately in the
light of the aforesaid perspective. We accordingly allow this appeal,
set aside the order of the Bar Council in so far as the appellant is
concerned and remit the matter to the Bar Council of India. We,
however, wish to make it clear that it will not be open to the com-
plainant to amend the complaint or to add any further allegation. We D
also clarify that the evidence already recorded will continue to form
part of the record and it will be open to the Bar Council of India to
hear the matter afresh on the same evidence. It is understood that an
application for restoration of the suit which has been dismissed for
default in the City Civil Court at Bangalore has been made by the
complainant and is still pending before the Court. It will be open to E-
the Bar Council of India to consider whether the hearing of the matter
•·:\ has to be deferred till the application for restoration is disposed of.
The Bar Council of India may give appropriate' consideration to all
these questions.
·--'
We further direct that in case the judgment rendered by this F
Court or any part thereof is reported in Law Journals or published
! elsewhere, the name of the appellant shall not be mentioned because
the matter is still subjudice and fairness demands that the name should
not be specified. The matter can be referred to as an Advocate v. The
Bar Council or in re. an Advocate without naming the appellant.
G
The appeal is disposed of accordingly. No order regarding costs.

Y. Lal Appeal disposed of.