Holding

A disciplinary committee cannot, under Section 44, modify an earlier order of removal on the same facts; the original order of permanent debarment is proper.

Summary

The respondent, an advocate, wrote a letter to his client demanding Rs 10,000 as a bribe to the presiding judge to obtain favorable orders. The State Bar Council found him guilty of misconduct under Section 35 of the Advocates Act, 1961 and suspended him for two years. The Bar Council of India’s disciplinary committee enhanced the penalty, ordering his removal from the roll of advocates. The advocate filed a review petition under Section 44, and the review committee reduced the punishment to a reprimand. The Supreme Court held that the review committee had no power to alter the earlier order on the same facts and that the original order of permanent debarment was justified. Consequently, the Court set aside the review order, restored the removal, and allowed the appeal with costs.

Issues considered

What is the scope of power of a disciplinary committee under Section 44 of the Advocates Act, 1961 to modify an earlier order of removal?
Whether the advocate's conduct of demanding a bribe constitutes serious misconduct warranting permanent debarment under Section 35?
Whether factors such as the advocate's age and clean record can mitigate the punishment.

Legislation cited

Advocates Act, 1961s. 35, s. 42, s. 44

Subjects

advocates misconductbar council disciplinary actionpermanent debarmentreview of disciplinary orderSection 35Section 44legal ethicsbribery

Judgment

SHAMBHU RAM YADA V A
v.
HANUMAN DAS KHATRY

JULY 26, 200 I

[Y.K. SABHARWAL AND K.T. THOMAS, JJ.] B

Advocates Act, 1961 :

Section 35-Misconduct-Advocate wrote a letter to his client demanding
Rs. 10,000 for bribing the Presiding Judge to obtain orders in his favour- C
State Bar Council suspended the Advocate from practice for a period of two
years-But the Bar Council of India directed removal of the Advocate from
the roll ofAdvocates-On review Bar Council of India reduced the punishment
to one ofreprimand-Justification of-Held: The Advocate is guilty ofserious
misconduct-Hence, punishment of permanent debarment rightly imposed- D
Reduction in punishment-Not justified

Section 44-Review of orders-Scope and ambit of-Held, the power of
review does not empower a Disciplinary Committee to take a different view of
the same set of facts while modifj;ing the earlier order passed by another
Disciplinary Committee. E
Section 42-Disciplianry Committees of Bar Councils-Powers and
duties-Importance of-Explained and emphasised.

legal Profession-Members of-Duties and responsibilities-Explained
and reiteratf!d. F

The appellant filed a complaint before the State Bar Council against
the respondent-Advocate stating that the respondent wrote a letter to his client
demanding a sum of Rs. I 0,000 for payment as bribe to the Presiding Judge
to obtain orders in his favour. The State Bar Council held the respondent G
guilty of misconduct under Section 35 of the Advocates Act, 1961 and
suspended him from practice for a period of two years. But the Disciplinary
Committee of the Bar Council of India enhanced the punishment and directed
that the name of the respondent be struck off from the roll of Advocates. The
review petition filed by the respondent under Section 44 of the Act was allowed
H
29
30 SUPREME COURT REPORTS [2001) SUPP. 1 S.C.R.

A and the earlier order was substituted with one reprimanding the respondent
Hence this appeal.

Allowing the appeal, the Court

HELD : 1. Legal profession is not a trade or business. It is a noble
B 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 a heavy responsibility on those on whom duty has been vested under
C 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. [31-G]

2. Original order of removal of the respondent from the roll of
Advocates has been reviewed on non-existent grounds. All the factors taken
D into consideration in the impugned order were already on record and were
considered by the Disciplinary Committee of the Bar Council of India when
it passed the original order. The power of review has not been exercised by
applying well-settled principles governing the exercise of such power. The
earlier order had taken into consideration all relevant factors for coming to
the conclusion that the respondent-Advocate was totally unfit to be a lawyer
E 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. [34-D-H; 35-A[

3.1. Members of the legal profession are officers of the court. Besides
F courts, they also owt: 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
G 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. (35-D[

H 3.2. It is the duty of Bar Councils to ensure that the lawyers adhere to
S.R. YADAV v. H.D. KHA TRY [Y.K. SABHARWAL,J.] 31

the required standards and on failure, to take appropriate action against them. A
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 B
the gravity of the misconduct. 135-D-E I

3.3. The Bar Councils under the Advocates Act, 1961 have been
entrusted with the duty of guarding the professional ethics and, therefore,
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 C
thereby put at stakes other members of the Bar. Considering these factors,
the Bar Council of India had rightly inflicted in its earlier order the condign
penalty. (35-G-H; 36-A)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6768 of
2000. D
From the Judgment and Order dated 4.6.2000 of the Disciplinary
Committee of the Bar Council of India, in R.P. No. 11/99 in D.C.A. No. 22
of 1997.

Ashok Mathur for the Appellant. E

B.D. Sharma, Vidya Sagar K., N. Vyas and Ms. Deep .Shikha Bharathi
for the Respondent.

The Judgment of the Court was delivered by
F
Y.K. SABHARWAL, J. 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 G
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 H
32 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A 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 are as follows:

A complaint filed by the appellant against the respondent, Advocate
B 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 Mahan! Rajgiri his client inter alia stating that his another
client has told him that the concerned judge accepts bribe and he has obtained
C 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 Rs. I0,000 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,
D respondent pleaded that the services of the Presiding Judge were tenninated
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
E professional misconduct.

The State Bar Council noticing that the respondent had admitted the
contents of the· Jetter 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
F 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.

G The respondent challenged the aforesaid order before the Disciplinary
Committee of Bar Council of India. By order dated 3 lst 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
H reads thus:
S.R. YADAV v. H.D. KHA TRY [Y.K. SABHARWAL, .I.] 33

"In the facts and circumstances of the case, we also heard the appellant A
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. I 0,000
from his client and he orally stated that subsequently order was passed B
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 C
authority. We also impose a cost of Rs. 5,000 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 responrlent filed a review petition under Section 44 of the Advocates
Act against the order dated 31st July, 1999. The review petition was allowed D
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 which two were not members of the earlier committee which had passed
the order dated 31st July, 1999.
E
The review petition was allowed by the Disciplinary Committee for the
reasons, which, in the words of the Committee, are these:

"(I) 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 F
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 G
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 H
34 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A 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
B 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.
c
In view of the aforesaid observations, the review petition is accepted
and the earlier judgment of the Committee dated 31.7.1999 is modified to the
extent and his suspension for life is revoked and he is only reprimanded."

D 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
E 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
F from his client to which the admitted letter was sent requiring his client to
send Rs. I0,000/- 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 31st July, 1999. The age and the number of years the advocate
G 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
H permanently cannot be imposed. The exercise of power of review does not
/

S.R. YADAV v. H.D. KHA TRY [Y.K. SABHARWAL, J.] 35

empower a Disciplinary Committee to modify the earlier order passed by A
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 B
officers of the court. Besides courts, they also owe a duty to the society
whi;;h 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, C
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 cc:•11cils to ensure that lawyers adhere to the required standards
and on failure, to take appropriate action against them. The credibility of a D
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 E
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 F
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 G
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 sheeps which may
shake the credibility of the profession and thereby put at stake other members H
36 SUPREME COURT REPORTS (2001] SUPP. l S.C.R.

A 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
B Rs. 10,000.

v.s.s. Appeal dismissed.