Shambhu Ram Yadav v. Hanuman Das Khatry

Shambhu Ram Yadav v.
Hanuman Das Khatry
(2001) 6 SCC 1
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 conduct themselves.
There is a 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 (sic cloud) on account of acts of omission and commission by any member of the profession.
A complaint filed by the appellant against the respondent Advocate before the Bar Council of
Rajasthan was referred to the Disciplinary Committee constituted by the State Bar Council. In
substance, the complaint was that the respondent while appearing as a counsel in a suit pending in a
civil court wrote a letter to Mahant Rajgiri, his client inter alia stating that another client of his has
told him that the Judge concerned accepts bribe and he has obtained several favourable orders from
him in his favour; if he can influence the Judge through some other gentleman, then it is a different
thing, otherwise he should send to him a sum of Rs 10,000 so that through the said client the suit is
got decided in his (Mahant Rajgiri’s) 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 the complaint, the respondent pleaded that the services of the Presiding Judge were
terminated on account of illegal gratification and he had followed the norms of professional ethics
and brought these facts to the knowledge of his client to protect his interest and the money was not
sent by his client to him. Under these circumstances it was urged that the respondent had not
committed any professional misconduct.
3. The State Bar Council noticing that the respondent had admitted the contents of the letter
came to the conclusion that it constitutes misconduct. In the order the State Bar Council stated that
keeping in view the interest of the litigating public and the legal profession such a practice
whenever found has to be dealt with in an appropriate manner. Holding the respondent guilty of
misconduct under Section 35 of the Advocates Act, the State Bar Council suspended him from
practice for a period of two years with effect from 15-6-1997.
4. The respondent challenged the aforesaid order before the Disciplinary Committee of the Bar
Council of India. By order dated 31-7-1999 the Disciplinary Committee of the 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 31-7-1999 reads thus:
In the facts and circumstances of the case, we also heard the appellant as to the
punishment since the advocate has considerable standing in the profession. He has served
as an advocate for 50 years and it was not expected of him to indulge in such a practice of
corrupting the judiciary or offering bribe to the Judge and he admittedly demanded Rs
10,000 from his client and he orally stated that subsequently order was passed in his
client’s favour. This is enough to make him totally unfit to be a lawyer by writing the letter
in question. We cannot impose any lesser punishment than debarring him permanently
from the practice. His name should be struck off from the roll of advocates maintained by
the Bar Council of Rajasthan. Hereafter the appellant will not have any right to appear in
any court of law, tribunal or before any authority. We also impose a cost of Rs 5000 on the
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appellant which should be paid by the appellant to the Bar Council of India which has to be
paid within two months.
5. The respondent filed a review petition under Section 44 of the Advocates Act against the
order dated 31-7-1999. The review petition was allowed and the earlier order modified by
substituting the punishment already awarded permanently debarring him with one of reprimanding
him. The impugned order was passed by the Disciplinary Committee comprising of three members
of which two were not members of the earlier Committee which had passed the order dated 31-7-
1999.
6. The review petition was allowed by the Disciplinary Committee for the reasons, which, in the
words of the Committee, are these:
“(1) The Committee was under the impression as if it was the petitioner who had
written a letter to his client calling him to bribe the Judge. But a perusal of the letter shows
that the petitioner has simply given a reply to the query put by his client regarding the
conduct of the Judge and as such it remained a fact that it was not an 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 of the impugned order.
(2) The petitioner is an old man of 80 years. He had joined the profession in the year
1951 and during such a long innings of his profession, it was for the first time that he
conducted himself in such an irresponsible manner although he had no intention to bribe.
(3) The Committee does not approve the writing of such a letter on the part of the
lawyer to his client but keeping in view the age and the past clean record of the petitioner in
the legal profession the Committee is of the view that it would not be appropriate to
remove the advocate permanently from the roll of advocates…. The Committee is of the
considered view that ends of justice would be met in case the petitioner is reprimanded for
the omission he had committed. He is warned by the Committee that he should not
encourage such activities in life and he should be careful while corresponding with his
client.
In view of the aforesaid observations, the review petition is accepted and the earlier
judgment of the Committee dated 31-7-1999 is modified to the extent and his suspension
for life is revoked and he is only reprimanded.”
7. 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 31-7-1999. The power of review has
not been exercised by applying well-settled principles governing the exercise of such power. It is
evident that the reasons and facts on the basis whereof the order was reviewed had all been taken
into consideration by the earlier Committee. The relevant portion of the letter written by the
advocate had been reproduced in the earlier order. From that quotation it was evident that the said
Committee noticed that the advocate was replying to a letter received from his client. It is not in
dispute that the respondent had not produced the letter received by him from his client to which the
admitted letter was sent requiring his client to send Rs 10,000 for payment as bribe to the Judge
concerned. We are unable to understand as to how the Committee came to the conclusion that any
vital point in regard to the letter had been ignored at the time of the passing of the order dated 31-7-
1999. The age and the number of years the advocate had put in had also been noticed in the order
dated 31-7-1999. We do not know how the Committee has come to the conclusion that the
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respondent “had no intention to bribe the Judge”. There is nothing on the record to suggest it. The
earlier order had taken into consideration all relevant factors for coming to the conclusion that the
advocate was totally unfit to be a lawyer having written such a letter and punishment lesser than
debarring him permanently cannot be imposed. The exercise of power of review does not empower
a Disciplinary Committee to modify the earlier order passed by another Disciplinary Committee
taking a different view of the same set of facts.
8. The respondent was indeed guilty of a serious misconduct by writing to his client the letter as
aforesaid. Members of the legal profession are officers of the court. Besides courts, they also owe a
duty to the society which has a vital public interest in the due administration of justice. The said
public interest is required to be protected by those on whom the power has been entrusted to take
disciplinary action. The disciplinary bodies are guardians of the due administration of justice. They
have requisite power and rather a duty while supervising the conduct of the members of the legal
profession, to inflict appropriate penalty when members are found to be guilty of misconduct.
Considering the nature of the misconduct, the penalty of permanent debarment had been imposed
on the respondent which without any valid ground has been modified in exercise of power of
review. It is the duty of the Bar Councils to ensure that lawyers adhere to the required standards and
on failure, to take appropriate action against them. The credibility of a Council including its
disciplinary body in respect of any profession whether it is law, medicine, accountancy or any other
vocation depends upon how they deal with cases of delinquency involving serious misconduct
which has a tendency to erode the credibility and reputation of the said profession. The punishment,
of course, has to be commensurate with the gravity of the misconduct.
9. In the present case, the earlier order considering all relevant aspects directed expulsion of the
respondent from the profession which order could not be lightly modified while deciding a review
petition. It is evident that the earlier Committee, on consideration of all relevant facts, came to the
conclusion that the advocate was not worthy of remaining in the profession. The age factor and the
factor of number of years put in by the respondent were taken into consideration by the Committee
when removal from the roll of the State Council was directed. It is evident that the Bar Council
considered that a high standard of morality is required from lawyers, more so from a person who
has put in 50 years in the profession. One expects from such a person a very high standard of
morality and unimpeachable sense of legal and ethical propriety. Since the Bar Councils under the
Advocates Act have been entrusted with the duty of guarding the professional ethics, they have to
be more sensitive to the potential disrepute on account of action of a few black sheep which may
shake the credibility of the profession and thereby put at stake other members of the Bar.
Considering these factors, the 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 4-6-
2000 and restoring the original order of the Bar Council of India dated 31-7-1999.
10. The appeal is thus allowed in the above terms with costs quantified at Rs 10,000.
*****
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Hanuman Das Khatry

Y.K. SABHARWAL, J. - Legal profession is not a trade or business. It is a noble profession.

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