Holding

The Supreme Court set aside the Disciplinary Committee’s order, holding that the evidence did not meet the required standard of proof for professional misconduct.

Summary

P.D. Khandekar and A.N. Agavane were found guilty of professional misconduct by the Disciplinary Committee of the Bar Council of India for giving improper legal advice in two matters – a purported marriage and a gift deed – and were suspended for four months and two months respectively. They appealed to the Supreme Court under Section 38 of the Advocates Act, 1961, contending that the Committee’s findings were based on conjecture and that the evidence did not meet the higher standard of proof required in disciplinary proceedings. The Court held that disciplinary findings must be supported by a "convincing pre‑ponderance of evidence", a standard higher than civil cases but lower than criminal conviction, and that mere negligence or wrong advice without moral turpitude does not constitute professional misconduct. Examining the evidence, the Court found it insufficient to prove moral delinquency or grossly improper conduct, especially on the second charge, and therefore set aside the Committee’s order. The appeal was partly allowed, the order of suspension was vacated, and the proceedings under Section 35(1) of the Advocates Act were dropped.

Issues considered

The appropriate standard of proof required in disciplinary proceedings under the Advocates Act, 1961.
Whether the Disciplinary Committee's finding of professional misconduct can be interfered with on appeal under Section 38.
The distinction between giving improper legal advice and giving merely wrong legal advice for the purpose of establishing professional misconduct.
Whether the evidence on the two specific charges against the appellant satisfied the required proof of moral turpitude or grossly improper conduct.

Legislation cited

Advocates Act, 1961s. 35(1), s. 36B, s. 38, s. 6, s. 7
Bar Council Ruless. Rule 36

Subjects

professional misconductAdvocates Actdisciplinary proceedingsstandard of proofimproper legal adviceBar Council of Indiaappeal under s.38moral turpitude

Judgment

...
414

PANDURANG DATTATREYA KHANDEKAR
A
v•
•
THE BAR COUNCIL
. OF MAHARASHTRA
BOMBAY & ORS.
.
B
October 20, 1983 ·

c
•
(A.P. SEN, E.S. VENKATARAMIAH AND R.B. MISRA JJ,j

Appellate Jurisdiction-Appeal under Section 38 of the Advocates Act,
1961-Interference by the conc.urrent finding offact by the Disciplin"ary Commitlee
of the Bar Council-Degree of proof required .Jor a_ Disciplinary Proceeding,
explained.
-
Advocates Act, 1961, Section 35 (!)-Professional MrsconduCt, meaning
of-Distinction between giving of wrong advice and improper legal advice--The
giving of improper legal advice may amount to professional misconduct.
D
The appellant and a_nothe.r advocate were found- guilty Of professional
misconduct by the Disciplinary _Committee of the Bar Council of India by its
order dated April 23, 1~7 ·. The gravamen of the charge against them related
to the giving of improper legal advice on two .specific counts. The Disciplin~ry
Committee held them guilty on both counts and ordered the suspensian of
E: the appellant from practice for a period of four months and the other advoc3te
for a period of two months.

·~ ·Allowing the appeal in part, the Court

HELD: 1.1 This Court would not_. as a general rule, in an appeal
. under s. 38 of ihe Advocates ACt, 1961, interfere with the concurrent findings
F of fact reached 'by the Disciplinary c"omrnittee of the B3r Council of India and
of the .State Bar Couilcil unless they are based on no evidence or proceed on
mere conjectures and surmises. Finding in such disciplinary proceedings must
b~ sustained by higher degree of proof than that required in civil suits, yet
falling short of the proof required to sustain a conviction in criminal · prosecu·

G
tion. ~here should be convincing preponderailce of evidence [419 B·Cj

2.1 The test of what constitutes "grossly improper conduct in the
diScharge of professional duties" has· been laid down in many cases. The test
--
-...,,
r'

to be applied is whether an advocate, in the purs_uit of his profession, has. done
something with regard to it which woUld be reasonably regarded as disgraceful
or dishonourable by his professional brethren: That is to say, whether -the
H proved ·misconduct of the advoc<\;te is such that he must be regarded as
unworthy to remain as member o[ the honourable profession to which he has
been admitted and unfit to be ·entrusted with the responsible duties that an
advocate is called upon to ~erform. [419 E; ~ B·CJ
P.D. KHANDEKAR V. BAR COUNCIL 415

•• In re: A. Solicitor Exparte the law society [1912] 1 K.B. 302; Allinson v.
General Council. of Medical Education and Registration (1984] 1 Q.B. 750; Georie
Friar Grahame v. Attorney General, Fiji AIR 1936 P.C. 224 quoted with
A.
approval.

2.l Charges of professional misconduct must be clearly proved and
should not be inferred from mere ground for suspicion, however reasonable, or
r
what may be error or judgment Or indiscretion.. 420 CJ ..
B
'
A pleader v. The Judges of the Riih Court of Madras, AIR 1930 P.C. 144;
referred to.

2.3 There is•~ distinction fetwe~n the giving of improper IeSal advice
and the giving of wrong legal advice. Mere negligence unacCompained by any
moral delinquency on the part of an advocate in the exercise of hiS profession C
does noramount to professional misconduct. There must be proved that the
advocate was guilty _of moral turpitude or that ~here was any moral delinquency
on his part. [420 D-E]

. In re : G. Mayor Cooke [1S89] 33 Sol. Journal 397, quoted with approval.
D
In re: A Vakil !LR [1925] 49 Mad 523, ln re, An Advocate, !LR (1935]
62.Cal 158; In the matter of an Advocate of Agra ILR [1940] A!l 386 approved .
•
. In the mallet of Pan Advocate (1964] 1 S.C.R. 697 applied.

For an advocate to act towards his client otherwise than with utmost
good faith is u·nprofessional. When an advocate is entrusted With a brief, he
is expected to follow the norms of professional ethics ~nd try to protect the
interests of his Client in relation to whom be occupies a position of trust.
Counsel's paramount duty is to the client. When a person consults a lawyer
for his advice, he relies upon his requisite experiellce, skill and knowledge as a
lawyer, and the lawyer is exp~cted to give proper and di~passionate legal advice
to the client fcir the protection of his interests. An advocate stands in 3. loco
parentis towards the litigants and therefore follows that the client is entitled to
receive disinterested, sincere a~d honest treatment especially where the client
'
approaches the advocate for succour in times of need. The members of the
legal profession should stand free from suspicion. [421 A-C]

3.2 Nothing shOuld be done by any ~ember of ihe legal fraternity which
might tend to lessen in any degree the confidence of the public in the fidelity, G
honesty and integrity of the profession. For an advocate to ·act tOwards his
client otherwise than with the utmost good faith is unprofessional. It is against
professional etiquette for• a lawyer to give tlfat an advocate should aCcept
employment with such motive, or so long as his client has such understandirig
for his purpose. It is professionally improper for a member of the .Bar to B
Prepafe false documents or to draw pleadings knowingly that ~he aUe~atio~~
made are untrue \9 bi~ knowledge. (421 F~Hl
416 SUPRl!Mll COURT REPORJ'S (1984] 1 s.c.a..

A
On merits, held that the .evidence adduced by the complainants falls
short of the required proof although the circumstances appearing do give- rise
to considerable susPicioo about the manner in ·which the advocates had been
conducting their affairs. It was accordingly held that the Disciplinary Committee
•·
of the Bar Council of India erred· in holding the advocates guilty of professional
misconduct. The proceedings drawn against them und_er sub-s. (1) of s 35 of ·
ihe Act-were accordingly dropped with an expression of hope that they would
, ·not by their conduct or behaviour prove ·themselves to be unworthy to remain
B as 'members of the legal pro~ession. ·

CIVIL APPELLATE JURISDICTION : . Civil Appeal No. 72-0 of
1976..

Appeal urtder section 38 of the Advocates Act, 1961 from the
C.
Order dated the 23rd April, 1976 of the Disciplinary Committee of
the Bar Council oflndia in D.C. Appeal No, 11 of 1975.

V.J. Francis for the Appellant ..

D V.N. Ganpule and Mrs. V.D. Khanna for the Respondent
No. I.

S. V. Tambekar for the Respondent.
The Judgment of the Court was delivered by
E SEN, J. The disciplinary proceedings out of which this appeal
~nder s. 38 of the Advocates Act, 1961 ('Act' for. short) has arisen
were initiated on a complaint made by a group of 12 advocates
practising in the two courts of Sub-Divisional Magistrates in the
Collectorate of Poona alleging varjous acts of professional miscon-
duct against the appellant P.D. Khandekar and one A.N. Agavane.
The proceedings .stood transferred to· the Bar Council of India under
s. 36B of the Act. The Di~sciplinary Committee of the. Bar Council of .
India by its order dated April 23, 1976 held both the appellant and
A.N. Agavane guilty of professional misconduct and directed that the
appellant be suspended for a period of four months from June I, 1976
G and Agavarie for a'period of two m~nths therefrorp. This Court by
' its order dated September 24, 1976 admitted the appeal and stayed
the operation of the suspension of order. ·

First as to the facts. The complainants alleged various acts of
H
profession~! misconduct against the appellant and Agavane. According
to them, the appellant and agavane sometimes impersonated as other
advocates for wbom the briefs were me~qt ;ind at times they directly
P.D. KHANDEKAR v. BAR COUNCIL (Sen, J.) . 417

approached the clients and adopted questionable inertiods charging
exorbitant fees. The State Bar Council referred to four specific A
charges rel~ting to them, two of impersonatiOn as· A.D. Ghospurkar
and N.L. Thatte and depriving these gentlemen of. the briefs meant

• for them. The Slate Bar Council held that these two charges have
not been substantiated and the Disciplinary Committee of the Bar
Council of India has not gone into them. Both the Disciplinary .. B
Committee of the Bar Council or India and the. State Bar Council
however found the appellant and Agavane ·to be guilty of giving
improper legal advice and held the c)large of professional misconduct
proved, but having regard to the fact that they were Junior member.s ·
of the bar, the Disciplinary Committee has taken a lenient view and
passed the. sentencdndicated above. In dealing with the question of C
punishment to be imposed on them, tlie Disciplinary Committee
observes :

"We take into consideration the age of the advocates,
· the families they ·have to maintaill, the environments in D
which they practise and the standard which is maintained
in such an environment is not very high as \he 'Bar
Association Rules.' certify toutisni a,nd· provide for toutism
.
which could be unthinkable anywhere else.".

The gravamen· of the charge against the appellant and Agavane · E
relates to the giving of improper legal advice on two specific counts,
namely: (1) On January 7, 1974 the appellant and Agavane are
alleged to have got the remarriage of a couple S.B. Potdar and Smt.
Leelawati' Dhavale performed altho.ugh their divorce was not legal.
The accusation is that the appellant and Agavane induced Potdar and 1
Smt. Dhavale to part with Rs. 100 towards their professional fee on
the faith of an assurance that the affidavit sworn by them ·before the
Sub-Divisional Magistrate, Poona to .the effect that they had divorced
' their respective spouses and had got married at Poona on January 7,
~/
1974 as.per Hindu rites would be sufficient proof of their marriage.
(2) On February 22, 1974 the a,ppellant and Agavane drew up an G
affidavit containing a recital that Snit Sonubai Girju Valekar of
Loni Bhapkar, Tehsil· Baramati, District Poona had· made a gift of
, her lands to her grand-daughter Smt. Mangala Ramesh Ghorpade.
The charge is thaf she had met all the lawyers except these two and
alf of them advised her to .give the market value of the land intended. II
to be gift.ed. and pay ad valorem stamp duty thereon indicating tl)e ·'
a!Pount of stamp dutr and the registratio~ char~es pa~able, but t~es~
413 SUPREME COURT REPORTS (1984) 1 S.C.R.

two lawyers told her that she should not unnecessarily .spend a large
A amount over the stamp duty and registration charges and they· would
instead have the work done within an amount of Rs .. 50 which was ·
finally settled at Rs. 45. The charges levelled aga\!'st the appellant
and Agavane are serious enough and if true in a case "like the present,
· the punishment has to he deterrent, but the question still remains
B whether the"charges have been proved.

The appellant virtually pleads that the case against him. is. a
frame-up. As to the incident 6f January 7, 1974, the appellant .
plead&; ·that the affidavit sworn by Potdar and Smt. Dhavale was
,.
c prepared on their instructions as they represented that. they had
divorced their respective spouses and expr~ssed that they wanted
to. marry each other on that very day and leave Poona. His case is
thal they represented that the priest was insisting upon an affidavit
as regards their divorce as a precaution before performing their
marriage and t.herefore they wanted to swear an affidavit to that
D effect. Regarding the incident, of February .22, 1974, there was a
complete denial that the appellant drew up an affidavit containing ·
a recital that Smt. Sonubai had made a gift of her lands to her
grand-daughter Smt. Mangala which he handed over to her, on
receipt of .Rs. 45 as his professional•fee.
Ill
The Disciplinary Committee has recorded a finding that it did

-
not consider that the conduct of the appellant and Agavane amounted
to cheating their clients, and that both were guilty of giving improper
legal advice, but these were not cases of a bona fide mistake of ·a
lawyer. With respect to the first charge, it· held that they had
misled their clients Potdar and .Smt. Dhavale that the affidavit
sworn by them before the Sub-Divisional Magistrate and the certi·
ficate of marriag;e issued by him would make them legally married
according to Hindu rites although no marriage was ever performed.
As regards the second charge, the Disciplinary Committee held them
to be guilty of not giving proper legal advice to their client Smt. .
G
Sonubai. It observed that if the gift deed could not be executed
because Smt. Sonubai had no sufficient funds to bear the cost of
stamp duty and registration charges payable, the affidavit was no
substitute for that as 'it would hardly be evidence of a gift. .It further
observed that it was unfortunate that the appellant an Agavane did
H not advise Smt. Sonubai also to· execute a will contemporaneously in
favour of her grand-daughter Smt. Mangala because if the affidavit
· were supplemented by an unregistered will, nothing would be wrong.
P.D. KHANDEmAR v•. BAR cbUNCIL (Sen, i/.) 419

'It proceeded upon the view that the affidavit could be taken as
evidence that Smt; Sonubai had handed over possession of her pro- A
perty to her grand-daughter. Smt, Mangala and if the latter possessed
·it for l2 years she would acquire title by prescription and although
the will may not be a deed of gift, ii would be the nearest approach .
to it.
B
In an appeal under s. 38 of the Act this Court would not, as
a general rule, interfere with the concurrent finding of fact by the
Disciplinary Committee of the Bar Council of India and the State
Bar Council unless the finding is based on no evidence or it proceeds
on mere conjectures. and. surmises. Finding in such disciplinary
proceedings must b~sustained by a higher degree of proof than that
required in civil suits, yet falling short of th.e proof required to
sustain a conviction in a criminal prosecution. There should be
convincing preponderance of evidence.

It is argued that the finding as to professional misconduct on·
the part of the appellant ancfAgavane reached by the Disciplinary D
Committee was not based on 'any legal evidence but proceeds on
mere conjectures and surmises. The case against the appellant and
--~
Agavane rests upon profussional misconduct and not any other con-
duct. The question is whether tllere was any evidence upon which the
Disciplinary Committee could reasonably find that they have been E
guilty of 'professional misconduct, within the meaning of sub-s. (I)
• of s. 35 of the Act~ The test of'what constitutes "grossly improper
conduct in the discharge of professional duties" has been laid down
in many cases. In the case of in re A Solicitor Ex parte the Law
Society,(') Darling, J. adopted the definition of "infamous conduct in
a professional respect" on the part of a medical man in Al/inson v. l1
General Council of Medical Education & Registration,(') applied to·
professional mis~onduct on the part of a Solicitor, and observed ;
•
''If it is showri that a medical man, in the pursuit of.
his profession, has done something with regard to it which
would be reasonably regarded as disgraceful or dishcino- ·
urable by his professional brethren of good. repute and·
competency, then it Is open to the General medical Council
to s.ay'that he has been guilty of 'infamous conduct in a
professional respect'."
H
(l.)[IPl21 I KB 302.
(2.) (18941 I QB 750.
.
420 SUPREME COURT REPORTS (1984) I s.c.R.

A
The Privy Council approved of the definition in George Frier
Grahame v. Attorney General, Fiji( 1) and this Court in the matter of f +
P. An Advocate(') has followed the same..
. The narrow question that
remains for consideration now is whether the finding of the Disciplin-
.
ary Committee as· ·to. professional misconduct on the. part of the
appellant can be legally sustained. The test to be.applied in all such
cases is whether the proved misconduct ~f the advocate is such that
B
he must be regarded as unworthy to remain .i"'niember of the hono'
urable profession to which he has been admitted; and unfit to b~
entrusted. with the responsible duties that an advocate is called upon
to perform. The Judicial Committee of the ·Privy Council in A, a
Pleader v. The Judges of the High Court of Madras(') laid down that
c charges of professio.nal misconduct must be clea,ly proved and should
not be inferred from.mere ground for suspicion, however reasonable,
or what may be error of ju.dgment ·or indiscretion. ·

There is a world of difference between the giving of improper
. legal advice and the ~iving of wrong !\;al advice. Mere negligence
D
unaccompained by any moral delinquency on the part of a legal
practitioner ill the exercise of his profession does not amount to
·professional .misconduct. In re· A Vakil,~) Coutts Trotter, C.J.
followed the decision in re G. Mayor Cooke(') and said tha.t :

"Negligence by itself is not professional misconduct;
into that offence there must enter the element of moral
delinquency.. Of that there is ·no ;suggestion here, .
and we are therefore able . to say that ·there is. no
case to investigate, and that no reflexion adverse to his ·
, F. professi~nal honour rests upon Mr. M.'~
•
The decision was followed by the Calcutta High Court in re An
Advocate,( 6) and by the Allahabad High Court in the matter of An
Advocate of ilgra(') and by this court in the matter of P. An
Advocate.(')
G

(I) AIR [19J6] PC 224.
(2) [1964] I S.C.R. 697.
(3) AIR [1930] PC 144.
(4) !LR [1925] 49 Mad. 523.
•
H (5) [1889] 33 Sol. Jour. 397 .
. (6). ILR [1935] 62 Cal.'158.
(7) !LR [1940] All. 386
(8) [1964] I S.C.R. 697.
P.D •. mIANDEKAR V. BAR COUNCIL (Sen; J.) 421

For an advocate to act towards his client otherwise than with
utmost good faith is unprofessional. When an advocate is ·entrusted A
with a brief, he is expected to follow norms ,<if professional ethic;s
and try to protect the interests !Jf his 'client in relation to whom. be
occupies a position of trust. Counsel's paramount duty is to the
client. When a person consults a lawyer for his advice, he relies
upon his requisite experience, skill· and knowledge as a lawyer and B
the lawyer is expected to give proper and. dispassionate legal advice
to the client for the protection of his interests. An advocate stands
in a loco parentis towards the litigants and it· t~erefore follows that
·the client is entitled to· receive disinterested, sincere and honest treat-
ment especially where-the client approaches the advocate for succour
in times of need. The members of the legal profession should stand c
free from suspicion. ln the matter of P. An Advocate,(') Page, C.J. in .
an oftquoted passage after extolling the ideals that an advocate ought
to set before him, and the ancient and noble conception of his office,
observed :
D
"From this conception of the office·of an advocate it
follows that the public are entitled to receive disinterested,
sincere and honest treatmimt and advice from the advo-
cates to whom they repair for counsel and succour.in their
time of need; and. it is for this reason thai Lord Mans-
field laid down, and the Court has always insisted, that E

-
members 'of the legal profession "should stand free from
all suspicion"." .

. Nothing should he done by any member ~f the legal fraternity
vvhich might tend to lessen in""any degree the. confidence of t)le
public in the fidelity, honesty and integrity of the profession. ; For an
-advocate to act towards his client otherwise than· with utm~st good.
faith is unprofessional. It is against professional etiquettee for .a·
lawyer to give that an advocate should accept employment with such
motive, or so long as his client has such understanding of his purpose. G
. It is professionally improper for a member of the bar . to prepare
false documents or to draw. pleadings knowingly that ·the allegations
made are untrue to his knowledge. Thus the giving of improper
legal advice may amount to professional misconduct. That however
may not be so by the giving of wrong legal advice. H

(I) ILJ,l [1933] 12 Rang. !IQ'
..
•

. 422 SUPREME CO!JRT REPORTS [1984) 1 s.c.R.

It appears to us tha'.t there was abundant evidence upon which
the Disciplinary Committee could find the appellant and Agavane
guilty of giving wrong ~egal advice, but there· is considerable doubt
whether upon such evidence the charge of>professional misconduct
can be· supported. In the instant case, it is not at all certain that
it can be said with strict accuracy that the appellant was guilty of
B moral turpitude or that there was any moral delinquency on his
par!.

As to the·first charge, the Disciplinary Committee has found
the appellant ·and Agavane'to be guilty of drawing up a false affidavit
to the effect that Potdar and Smt. Dhavale had been married at
c Poona on January 7, 1974 according to Hindu rites although no such
marriage was ever performed. Upon the evidence on record, it is
difficult to believe that Potdar and Smt. Dhavale could be prevailed
upon to swear an affidavit of the kind unless it was prepared on their
instructions .or that they· were induced. to part with Rs. 100 towards
D the professional fee of the appellant and Agavane on- tlje faith of. a
false assurance that the affidavit would be sufficient evidence in proof
of their marriage. Potdar was an Overseer and had put in an adver·
tisement inviting suitable proposals for his marriage. Smt. Dhavale
held a Diploma in Education and had been working ,as a Teacher
in a Primary School under the Zita Parishad, Satara. She had also
• advertised in the papers seeking suitable proposals for her marriage.
Both of them corresponded with each other and decided to get

F
ma,trie'd and for this purpose they came to Poona on January 7, 1974
for legal advice With respect to their marriage. Incidentally, Smt.
Dhavale who is a tribal woman claims to have got a divorce by cus·
tom prevalent among her tribe, wl\l'reas Potdar ytho was married
earlier ·according to Hindu rites presumably got his divorce by
-
initiating proceedings under the Hindu Marriage Act, 1955. They
both approached the appellant and Agavane and wanted their legal
advice and stated that they wou1d like to get married and leave Poona
on the same day or, in other words, they were in a hurry to get
G married.. Ex. C·13 which inter alia states:

"We have today married at Poona as per Hindu rites" was
drawn up by the appellant and Agavane and signed by both the
parties before the Sub-Divisi<?nal Magistrate in English after reading
H the contents. The ·recital in the affidavit that they got married at
· Poona on January 7, 1974 according to Hindu rites must have been
made on their instructions. They were both-anxious to leave Poona
P.D. KHANDEKAR v. BAR COUNCIL .(Sen, J.) 423
'.
a11.d brought a document styled as a marriage certificate obtained
under s.. 5 of the Bombay Registration of Marriages Act, !.953 under A
which even Hindu marriages have to be registered. The document
was signed by both Potdar and Smt. Dhavale and also attested by
. one Gangadhar Laxman Jamkhedkar who claimed to· have acted as
the priest and said to have solemnised the marriage. There is nothing
unprofessional for an advocate to draft an affidavit on the instructions 8
of his client.

- The testimony of Smt. Dhav.ale shows that she accompanied by
Potdar came to the Court of the Sub-Divisional Magistrate on
January 7, 1974 at 2.30 p.m. The purpose of their visit is not very
clear.. At first, her version was that she told the appellant and
Agavane that they wanted to have their marriage performed. She
c
. then added that they told these lawyers that they wanted to get their
marriage registered. They both appeared before the Sub-Divisional
Magistrate and verified the affidavit Ex. C-13 to be true to their
personal knowledge. When confronted with the portion marked as D
"AA" : "We have today married at Poon.a as per Hindu rites", she
• asserted that she and Potdar had not been married according to
Hindu rites at Po~na on January 7, 1974 or at any time thereafter.
She however states that she was living with Potdar as she was under
the belief that she had been married to him. The fact remains t)l.at
she has also changed -her surname to Smt. Potdar. It . is rather E

-
. improbable that a Hindu lady· like Smt. Potdar would start living .
with a stranger as husband and wife and atso adopt a new surname.
unless there was a marriage. Both of them were educated persons
.and they had the power to understand what they were doing and
therefore they being the executants of the affidavit must be held
·bound by the recitals contained therein. The oral evidence adduced·
by the ·complainant was not sufficient to rebut the presumption
arising from ihe recitals coupled with the other circumstances
appearing.

The evidence with regard to the second charge, namely, that the G
appellant and Agavane were guilty of aot giving proper legal advice
to Smt. Sonubai is even less convincing. It is quite possible that this
· old illiterate lady aged about 90 years came to the Sub-Divisiobal
Magistrate's Court with. the purpose of executing a gift deed in favour
H
of her grand-daughter Smt. Mangala. There is however no real or
substantial evidence to con(\ect the appellant with the affidavit. The
testimony of smt. Sonubai is wholly inconclusive as to the identity .

•
'

424 ·.· SUPREME cOURT REPoRTS ----- ·· [l9S4] 1 s.c.R.

oft'1e perso~ who prepare<! ~he affidavit. She states in h~r exantlna•
A tion in-chief that she had entrusted the work of execution of the gift
deed to.two advocates and that they represented to her that the affidavit.
was a- gift deed, but added that she. would not lie also.to identify them
.. becanse she had a weak eye-sight arid was a. !so
. hare\ . of hearing for
the last 2/3 years and was not able to see or hear properly. She further
.•. B unequivocally a'dmitted that she never . approached tlie appellant ·at
any time for. any work: . It is . difficult to support the charge .of
professional misconduc1: agilins(the appellant on such evidence. ·
.... ·
It must accordingly be held that the Disciplinary Co~~ittee of
the Bar Council of·India.erred in 'holding the appellant and 'Agavane
C · _guilty of professional misconduct because the evidence. adduced by
· the complainants falls short of the required·. proof, . but· the .. circums-
tances appearing do give 'rise to considerable suspicion. about the .
manner in which they have 'been' conducting their 'affairs, which';
· deflects from
\ ..
the norms of professional· ethics. · ·
. . . .. . . . . .
· · ·
D , May be; the compiainants. were not ·actuated from a purely
altruistig motive in 19dging the ·complaint but · that does . not fully
exonerate the appellant and Agavane of. the ·way . they have· been
carrying on their activities. It appears 'from the order of the Disciplin- ..
ary Committee that some 12 to 14 advocates practising in the two
. Courts of the Sub-Divisional Magistrates in the Coll;ctorate of Poona.
had formed
.
an association called 'the -Poona Collectorate
,_ ' .- ',.
Bar Associ-
-· - - - ... ,. -
· ati~n, the purpose of which was that the entire work,· in "_the ·' _
Collectorate should be pooled together. · To . attain that· object, the
. complainants employed servants for collecu'ng work from prospective
client; on a percentage of fees to be giveu to .them and the work to· be
F distributed am orig the members. It further appears that the appellant .. : .
and Agvane were two JUnior'Jawyers who preferred not to become-.
- members ofihe. association, but:started their practice sitting under a·· ·
tree in the Court precincts. Presumably, the gentlemen - of the liar
who were member;. of the 'association found that theft' activities
G were prejudicial to their Interests because they directly got in touch ~-
·- - with the _clients and did the same kind of .work . with impunity by ..
· adopting similar questionable" methods. We can only express the ,
. hope that these law_yers will; in future, see to it thai'_ such improprie-
. ties as those referred to do ·not recur. · · · -'
ll
..
. Th~ Discipliiiary Commiitee ~peaks of· the ~'environments" in
_ which.these lawyers work; The complainants have ·examined· four
.advocates. to substantiate . the charge against the .appellant . arid

•
P.D. KHANi:>EKAR v. BAR COUNCIL (Sen, J.) 42S

Agavane vii. A.D. Ghospurkar, N.L. Thatte, T.S. Pariyani and
V.A. Mandake. The evidence of these lawyers shows that their work
mainly consists in attestation of witnesses. Their .appearnce in cases

• were few and far between .. They either sit in the verandah near the ·
stamp-vendor in front of the Sub-Registrar's· office or in the Court
. . '
compound with the petition-writers or typists. To illustrate this,·
A.D: Ghospurkar, who is an advocate·of 8 years'· standing, frankly 8
admits that his main work is io indentify parties who come to make
affidavits before the Sub-Divisional Magistrates and that his work of ·
conducting cases i~ negligible. During his 8 years at the bar, he has
done near about IO to 12 chapter cases and about 8 cases in other.
courts. The case presents a dismal picture of ·the· legal profession. c
We mean no disrespect to the members of the Poona C.ollectorate Bar.
The conditicin.s prevalent are more or Jess the same everywhere and it"
is a matter of deep concern that nothing has been done to organize
the bar.
D
We regret to say that the complainants the~selves are ·not free
from blemish. The Disciplinary Commi1tee of the Bar Council of
India observes that . the method adopted by ihe 'complainants to
procure work by employing agents itself all)ouqts. to professional
misconduct. It deprecate~. the practice that is prevalent at the Poona
· Collectorate Bar· and observes w'iih regard to the complainants : ·E.

"This means that the putpose of the Association • was
· to appoint certain touts who would get work for their .
. members ·and then the work will l)e .distributed among the
members. Touting or appointing touts is not consistent .F
with the rules framed under the Advocates Act ~nd such
practice would be considered professional .misconduct but .,
that is exactly what the Bar Association referred to above
intend to do,"

We are informed that disciplinaFy proceedings have since been .
initiated against the complainants and therefore we refrain from
'expressing any opinion on the impropriety of _their cond~ct:
• •

·The Preamble to Chapter Ir Part VI of the Jlules lays down
I ,
e
that an advocate shall at· all times comport himself in a trianilei
befitting his status as an officer of the Courl privileged member of the
426 SUPREME COURT REPORTS (1984) I S.C.R.

community and a gentleman. Rule 36 of these rules provides that an
advocate shall not solicit work or advertise, either .directly · or
indirectly, whether by circulars, advertisements, touts, personal
communications etc. It is a well recognized rule of etiquette in the
legal profession that no attempt should be made to advertise oneself
or solicit work directly or indirectly. In his 'Brief to Counsel', 5th
•
B edn., 1962, ·p. 94, the celebrated author Henry Cecil administered. a
word of caution :
• •
"Don't go touting ·for work in any · circumstances.
'There are a1l sorts of ways of doing this. Don't adopt
c any of them. If you are going to get on, you will get on
without doing that kind of thing, and if you are not going
. to get on, the little extra work you get will not either
make you snccessful or counter-act the bad impression
you will make on many people inside and outside the
law."
D
We are constrained to say that the evil of touting has been in
existence since ancient times and still is a growing menance, and the
bar is open to the accusation of having done nothing tangible to

lil
eradicate this unmitigated evil. The persons most affected . by this
system are the junior lawyers as· a class. Some law~ers may well
. ""
expound unblushingJy. the doctrine of getting on, getting honour and
at last' getting honest. If it is generally known that a person however
honest has got on and got honour through the patronage of touts,
the bar should decline to show such a man any honour .or conside-
. ration whatsoever: We impress upon the Bar Council of India and
the State Bar Councils that if they still take strong action t0 eradicate ,
this evil, it would lead to a high standard of propriety and
professional rectitude which would make it impossible for a tout to

G..
.
turn a penny within th.e precincts of the law courts .

Finally,'it is the solemn duty of the Bai Council q( India and
the State Bar Councils to frame proper schemes for the training of
the junior members of the bar, for entrusting of work to .them, and.
for their proper guidance so that eventually we have new generation
e of efficiently trained la~yers. It is regrettable that even after. more
than two decades that the Advocates Act was brought on the Statute
Book; neither the Bar Council of India. nor the State :Bar Councils
• •
P.D. KHANDEW v. JIAR couNCU: (Seii,J.) . 427
•
have taken any positive steps towards ameliorating the conditions of
· the members of the bar, particularly of the junior members.• . Sub-ss. .. ·A.
(3) of ss. 6 and 7 of the Act provide that the State Bar Councils and ·· "
the Bar Council of India may constitute one or more funds in the
. prescribed manner for th~ purpose of (a) giving financial· assistance
to organised labour welfare schemes for the indigent, disabled or
other advocates, and (b) giving legal aid 'or advice in accordance with B
the rules made'that behalf.. ·. Sub-ss. (3) thereof provide that they·may
receive any grants, donations, · gifts or. benefactions for the above
purposes, which shall be credited to th.e appropriate fund. or funds·:
under that sub-section. The Bar Council of India and the State Bar --
Councils hold very large funds, may be to the tum~ of rupees one crore
and above, but no positive steps have been taken in organizing the legal C
profession and safeguarding the interests of lawyers in general, parti· - ·
cularly the juxiior members of the bar. · It is with· a deep sense of ...
.
anguish that one finds the legal profession in •a state of total disarray
·and for the majority it is.a• continuous struggle . for existence, . The · ·
hardest hit arc the junior members. We expect that the matter wm · D
receive the attention that it deserves.

In the result, the appeal partly suceeds and is allowed. The order
of the Disciplinary ,C?mmittee of the Bar Council of India holding ·
- the appellant and A.N. Agavane guilty of professional misconduct is
E
set aside.. The proceedings drawn against them ·under sub·s. (I) of
s. 35 of the Advocates Act, 1961 are.dropped. We hope and trust
that they would not by their condu~t or behaviour prove themselves
to be unworthy to remain as members· of the grea.t profession "to ·
which they belong. . ,.,,. • F

. "
'
There shall be no order a·s to costs. ·

S.R. . • .. Appeal partly allowed. .
... ._.,

' __:; I

•