Dismissed

Adv.P.Nagaraj v. Bar Council of Kerala

Kerala HC12 Feb 2013WP(C)/3704/2013

Case brief

AI extract

What is this about?

The Court dismissed Writ Petitions filed by an advocate seeking to quash disciplinary proceedings initiated by the Bar Council against him for filing baseless PILs. Holding that 'reason to believe' need not be formalized, the Court found allegations of harassing public servants prima facje sufficient to trigger mandatory proceedings under the Advocates Act.

What did the court decide?

Writ petitions dismissed; disciplinary proceedings in DC 48/12 and DC 46/12 allowed to proceed.

Adv.P.Nagaraj Vs Bar Council of Kerala — Writ and Judicial Review | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934

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WP(C).No. 3704 of 2013 (K)

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PETITIONER(S):

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ADV.P.NAGARAJ, S/O. S.P. THYAGARAJAN, AGED 37 YEARS, RESIDING AT AYYAPPA NIVAS, OPP. COURT COMPLEX, NEYYATTINKARA, THIRUVANANTHAPURAM.

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BY ADVS.SRI.AYYAPPAN SANKAR SRI.JAYAN JOHN SMT.S.HRIDYA

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RESPONDENT(S):

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1. BAR COUNCIL OF KERALA, REPRESENTED BY ITS SECRETARY, BAR COUNCIL BUILDING, NEAR HIGH COURT, ERNAKULAM-682 031.

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2. DR. SIBY MATHEWS, IPS., (S/O AND AGED NOT KNOWN TO PETITIONER) COMMANDANT GENERAL, FIRE & RESCUE SERVICES, THIRUVANANTHAPURAM-695 121.

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R1 BY ADV.SRI.GRACIOUS KURIAKOSE,SC R2 BY ADV.SRI.V.V.NANDAGOPAL NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-02-2013, ALONG WITH WPC.NO. 3705 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.3704/2013

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1 TRUE COPY OF THE COMPLAINT DATED OCTOBER 2010 IN CRL. M.P. NO. 2123/10 IN THE COURT OF THE HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.

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EXT.P2 TRUE COPY OF THE COMPLAINT DATED NIL FILED BY THE 2ND RESPONDENT BEFORE THE BAR COUNCIL OF KERALA.

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EXT.P3 TRUE COPY OF THE NOTICE OF HEARING DATED 25-7-12 ISSUED BY THE DISCIPLINARY COMMITTEE.

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EXT.P4 TRUE COPY OF THE DEFENCE STATEMENT BEFORE THE BAR COUNCIL OF KERALA.

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EXT.P5 TRUE COPY OF THE ORDER SHEET OF PROCEEDINGS OF THE DISCIPLINARY COMMITTEE IN D.C. NO. 48/12.

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RESPONDENTS' EXHIBITS : NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

ANTONY DOMINIC, J. ================ W.P.(C) Nos.3704 & 3705 OF 2013

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=========================

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Dated this the 12^th day of February, 2013

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J U D G M E N T

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Issues raised in these writ petitions are common. Therefore, these cases were heard together and are disposed of by this common judgment.

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I heard the learned counsel appearing for the petitioner, learned senior counsel appearing for the 1^st respondent, the Bar Council of Kerala and the learned counsel appearing for the 2^nd respondent in these cases.

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Petitioner is an Advocate practicing in the District Courts Centre, Thiruvananthapuram and at Neyyattinkara. He claims to be a public spirited citizen, who has filed several complaints in public interest against acts of corruption, nepotism and maladministration on the part of persons holding public offices.

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In WP(C) No. 3704/13, it is stated that the petitioner filed Crl.M.P.2123/10 in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram against the 2^nd respondent and another person alleging offences under the Indian

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WPC.Nos.3704 & 3705/13

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Penal Code and the Prevention of Corruption Act. A copy of the complaint is Ext.P1. The complaint was rejected by the Commissioner on the ground that the averments therein did not disclose any offence against the respondents herein. Subsequently, the 2^nd respondent filed Ext.P2 complaint before the 1^st respondent under Section 35 of the Advocates Act for appropriate action against the petitioner.

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In so far as it is relevant, Ext.P2 complaint reads thus;

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The petitioner Adv. Nagaraj had produced several documents along with the complaint, including a press cutting from “Flash” newspaper dated 17^th July 2010 and “Kerala Kaumudi” dated 18^th July 2010. The newspaper reports contain defamatory matter, against me.

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The petitioner Adv.Nagaraj has been filing several “Public Interest Litigation” complaints before the various Criminal Courts in Thiruvananthapuram. Details of some of the complaints filed by Adv.Nagaraj are given below.

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1. Cr.MP No.1045/2009/ECT dated 20.7.2009 (against Shri E.K.Prakash, Director, Treasuries.

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2. Cr.MP No.1149/2009 dt 30.11.2009 (against Shri V. Murukesh, Dy.Commissioner, Sales Tax)

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3. Cr.MP.No.08/2010/ECT dated 1.3.2010 (against Shri.P.K.Pocker, Director, State Institute of Language)

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4. Cr.MP NO.2027/2010/ECT dated 27/11/2010 (againt Shri Premachandran, Addl.Director and some others, Soil Survey Dept.)

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Apart from the above Adv.Nagaraj has filed similar private complaints against Sri.T.K.Raveendran, Former Secretary, Thiruvananthapuram Municipal Corporation, Shri.C.K.Guptan, former President of Travancore

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WPC.Nos.3704 & 3705/13

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Devaswom Board, Shri V.Surendran Pillai, Minister, Shri K.S.Prathapachandran, Dy.Tahsildar, Thiruvananthapuram and several other public servants.

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Adv.Nagaraj, misusing his privileges as an advocate, has been appearing in Court as “Party in Person”, even though the matter and contents of the complaint are not within his personal knowledge, he has been acting as an agent of persons with vested interest, in order to harass public servants. By such action he has violated the code of conduct for an advocate, and liable to be dealt with by the disciplinary committee of the Bar Council. Such action on the part of Adv.Nagaraj has lowered the profession of an Advocate, before the public, and public servants.

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The 1^st respondent referred the complaint to the Disciplinary Committee, which registered the case as DC 48/2012. The Disciplinary Committee issued Ext.P3 notice and the petitioner appeared before the Committee and filed Ext.P4 defence statement. Subsequently, the proceedings continued, but however, on account of his absence on 30/12/12, the Disciplinary Committee declared the petitioner ex parte. Thereafter, the petitioner filed an application to set aside the order declaring him ex parte and the Disciplinary Committee passed Ext.P5 order setting aside the ex parte order subject to the petitioner paying `2,500/- towards costs. It was at that stage this writ petition was filed seeking to quash the proceedings in DC 48/2012 as also Ext.P5 order imposing costs for setting aside the ex parte order.

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WPC.Nos.3704 & 3705/13

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Senior counsel appearing for the 1^st respondent states on instructions that, on receipt of the complaint, the 1^st respondent issued notice to the petitioner. He filed his version which was also made available to the 2^nd respondent, the complainant. The complainant filed his reply. Thereafter the matter was considered by the Bar Council in its meeting and it thereafter being satisfied that a case for proceedings under Section 35(1) of the Advocates Act was made out, referred the complaint to the Disciplinary Committee on 15/7/12. Counsel appearing for the 2^nd respondent endorsed the submission made on behalf of the 1^st respondent. He further says that he too has filed his pleadings before the Bar Council and that in lieu of his evidence in chief, he has filed a proof affidavit before the Disciplinary Committee. It is stated that the case now stands at the stage of framing charges against the petitioner.

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In so far as WP(C) No. 3705/13 is concerned, this writ petition is also filed by the same petitioner and here also, he has filed Crl.M.P.608/11 before the Enquiry Commissioner and Special Judge, Thiruvananthapuram against the 2^nd respondent and 41 others. Copy of the complaint is Ext.P1. In this complaint, it was

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:5 :

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WPC.Nos.3704 & 3705/13

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alleged that the respondents therein have committed offences punishable under the provisions of the Prevention of Corruption Act, 1988 and the Indian Penal Code. However, in Ext.P2 order passed by the Enquiry Commissioner, it took the view that the averments in the petition did not contain any specific allegation against the 2^nd respondent herein and some others in Ext.P1. Therefore, the Commissioner referred the complaint under Section 156(3) to the Director, Vigilance and Anti Corruption Bureau for conducting enquiry into the allegations made against respondents 3 to 12 in the petition alone.

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Thereupon the 2^nd respondent, a State Committee Member of the CPI(M), who was also the President of the District Panchayat, filed Ext.P3 complaint before the 1^st respondent. It is alleged in Ext.P3 that he was the candidate representing the Left Democratic Front in Parasala Assembly Constituency and that Ext.P1 complaint was filed on the eve of the election. In the complaint, it is also alleged that the petitioner filed Ext.P1 complaint on the influence of the rivals of the 2^nd respondent and on accepting money from them and on coming to know that he was contesting the election. According to him, the complaint was

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WPC.Nos.3704 & 3705/13

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intended to mislead the voters and was filed misusing his capacity as an Advocate.

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The relevant allegations contained in para 7 and 8 of Ext.P3 reads thus;

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ഹര��ക�രന ന�യമസഭ ത�രത�ട �പ�ല സ�ന�ര��യ�ണ� എന � മനസ�ല�ക�യ എ� കക� ദ�ര�ദ%ശദ'�തട സമ��ദ�യകതര ത�റ�ദര�പ�കണതമന ഉദ%ശദ'�തടയ�ണ� ഇപ.ക�ര/ ഒര� ഹര�� ഫയല ത2യ�� അ��ന� .ബ�5�സ�റ� നലക�യ�� . �ലപരകക�ക5�തട സ6�ധ8ന'�ന� വഴങ� ട�യ�നമ�ര�ല ന�ന�/ ��ക കകപറ�യ�ണ� എ� കക� ഇപ.ക�ര/ ത2യ�� എന�ണ� അദന6ഷണ'�ല അറ��. ത.��ജനങ5�തട മ �ന�ല ഹര��ക�രതന അ.ഹ�സ@ന�ക�ന�/ ത.�� ജനങ5�ല ത�റ�ദ�രണ ജന�പ�കണ/ എന ദ�ര�ദ%ശദ'�തടയ�മ�ണ� ട�യ�ന ഇപ.ക�ര/ പ.വര'�ച�ര�ക�ന��.

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ഹര��ക�രതC പ.വര'� തപ.�ഫഷണല മ�സ�ദക�ണEക�റ� ആണ� . ഒരഭ�ഭ�ഷകന ഒര�കല �/ ത2യര�ത�ന� അE6ദകറ�സ� ആക�റ� ന�ഷ�കരഷ�ക �ന പ.വര'�യ�ണ� ട� അഭ�ഭ�ഷകന ത2യ��ര�ക �ന��. ദ�രവ@വഹ�ര/ നലക �കയ�/ ആയ��ന� .ബ�5�സ�റ� നലക�കയ�മ�ണ� ട�യ�തC സ�ര/ .ര�.�ട�. ട�യ�ന മ8E�യ .ബ�5�സ�റ� ദമന�യ�യ �ളയ�5�ണ�. എ� കക�യ�തട പ.വര'� അഭ�ഭ�ഷക സമIഹ'�ന ��തന അ.മ�ന/ വര�'�വച�ര�ക�ന�. മ�പ�മല, ഒര� വ@ക� അഭ�ഭ�ഷകന�യ�

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WPC.Nos.3704 & 3705/13

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എന ദറ�ള ത2യ �/ദ.�ള നട' �ന സ�@പ.��ജയ �തട ല/ഘനമ�ണ� ട�യ�തC ഇ'ര/ പ.വ '�. ട�യ�തC പ.വര'� ഹര��ക�രന� അ��യ�യ മദന�ദവദനയ �/ മ�നഹ�ന�യ �/ ഉണ�ക�യ�ര�ക�ന�.

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Here also the complaint was referred to the Disciplinary Committee and the Committee issued Ext.P4 notice to the petitioner. The petitioner filed Ext.P5 defence statement and charges were framed as per Ext.P6. Subsequently, on 30/12/12, he was declared ex parte and on an application made by the petitioner, that order was set aside as per Ext.P7, imposing cost of `2,500/-. It was at that stage this writ petition was filed seeking to quash the proceedings in DC 46/12 and Ext.P7 order passed by the Committee imposing costs.

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Senior counsel for the 1^st respondent explained that the proceedings in this case also were completed as in the case of WP(C) No. 3704/13. Counsel appearing for the 2^nd respondent also confirmed that he has filed his proof affidavit and that the complainant was examined in chief by the Disciplinary Authority on 30/12/12.

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The first contention raised by the learned counsel for the petitioner was that Section 35 of the Advocates Act

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WPC.Nos.3704 & 3705/13

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contemplates reference to the Disciplinary Committee only if the State Bar Council has “reason to believe” that any Advocate on its roll has been guilty of “professional or other misconduct”. It is stated that, there was absolutely no material before the 1^st respondent to believe that the petitioner had committed any professional or other misconduct, justifying reference of the complaints to the Disciplinary Committee.

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Section 35 is in Chapter V of the Advocates Act, 1961, which deals with the conduct of advocates. This section providing for punishment of advocates for misconduct reads thus;

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“35. Punishment of advocates for misconduct- (1) Where on receipt of a complaint or otherwise a State Bar council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee”. [(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]

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(2)The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

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(3)The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:-

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(a) dismiss the compliant or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

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WPC.Nos.3704 & 3705/13

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(b) reprimand the advocate;

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(c) suspend the advocate from practice for such period as it may deem fit;

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(d) remove the name of the advocate from the State roll of advocates.

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(4)Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

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(5)Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

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A reading of Section 35(1) shows that, where on receipt of a complaint or otherwise, a State Bar Council has “reason to believe” that any advocate on its roll has been guilty of “professional or other misconduct”, it shall refer the case for disposal to its disciplinary committee. Once the Disciplinary Committee concludes the proceedings, orders to be passed by the Disciplinary Committee are those enumerated in Clauses (a) to (d) of Section 35(3).

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Thus the State Bar Council gets power to make reference to the Disciplinary Committee only if it has reason to believe that an advocate on its roll is guilty of professional or other misconduct. The expression “reason to believe” occurring in Section 35 of the Advocates Act has come up for consideration

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WPC.Nos.3704 & 3705/13

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of the Apex Court in the judgment in Dastane v. Shrikant (2001 KHC 497), where in paras 22 and 23, it has been held thus;

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22. When the Bar Council in its wider scope of supervision over the conduct of Advocates in their professional duties comes across any instance of such misconduct it is the duty of the Bar Council concerned to refer the matter to its Disciplinary Committee. The expression “reason to believe” is employed in S. 35 of the Act only for the limited purpose of using it as a filter for excluding frivolous complaints against Advocates. If the complaint is genuine and if the complaint is not lodged with the sole purpose of harassing an Advocate or if it is not actuated by mala fides, the Bar Council has a statutory duty to forward the complaint to the Disciplinary Committee.

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23. In Bar Council of Maharashtra v. M.V. Dabholkar, (1976) 2 SCR 48: (AIR 1976 SC 242) a four Judges Bench of this Court had held that the requirement of “reason to believe” cannot be converted into a formalised procedural road block, it being essentially a barrier against frivolous enquiries.

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Therefore, the requirement of “reason to believe” only contemplates satisfaction of the Bar Council that the complaint is a genuine one and that the complaint is not lodged with the purpose of harassing the advocate and that it is not actuated by malafides. The Supreme Court also has cautioned that the requirement of “reason to believe” cannot be converted into a formalised procedural road block and therefore, this requirement cannot be made use of to frustrate the proceedings against an advocate. In this context, it should also be clarified that the Bar

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WPC.Nos.3704 & 3705/13

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Council is not statutorily required to record the reasons for its belief that the advocate concerned is guilty of misconduct. The Bar Council is also not undertaking any adjudicatory exercise, but is only considering the matter for its satisfaction that the complaint is not frivolous and that it is not intended to harass the advocate concerned.

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In so far as these cases are concerned, submission made on behalf of the 1^st respondent Bar Council shows that, on receipt of the complaints from the 2^nd respondent in these writ petitions, Bar Council issued notice to the petitioner and he filed his statements. The statements were served on the complainants and they also filed their rejoinders. Thereafter the Bar Council considered the matter in its full meeting and based on the decision taken in that meeting, the Bar Council referred the matter to the Disciplinary Committee. This process that was undertaken by the Bar Council itself demonstrates that on the materials that were available before it, it had reason to believe that the petitioner was prima facie guilty of professional or other misconducts justifying reference of the complaints to the Disciplinary Committee. In other words, the contention of the

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WPC.Nos.3704 & 3705/13

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petitioner that on receipt of the complaints, without any application of mind and without complying with the requirements of Section 35(1) of the Advocates Act, the 1^st respondent referred the complaints to its Disciplinary Committee is factually and legally incorrect.

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Second contention raised by the learned counsel for the petitioner is that to be a professional or other misconduct as envisaged in Section 35(1) of the Advocates Act, the misconduct committed by the advocate must be related to his duties as an advocate. According to the petitioner, the complaints filed by him before the Court of Enquiry Commissioner and Special Judge are unrelated to his capacity as an advocate and therefore, there is no misconduct within the scope of Section 35 of the Advocates Act. On this basis, it was argued that the complaints are totally untenable and the Bar Council acted without jurisdiction in having taken cognizance of the same.

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To substantiate the aforesaid argument, learned counsel for the petitioner relied on two Apex Court judgments. R.Janardhana Rao v. G. Lingappa (AIR 1999 SC 780) was a case where the appellant, an advocate, persuaded the respondent

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WPC.Nos.3704 & 3705/13

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against whom he was appearing in a civil suit, to give him a hand loan of `3,000/- against a postdated cheque, which on presentation, bounced. On a complaint made by the respondent, the State Bar Council and the Bar Council of India held the appellant guilty of professional misconduct. The Apex Court held that the misconduct alleged is not a professional misconduct and concluded thus;

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“It is pertinent to note that the appellant, while taking the loan from the respondent on any pretext, was not acting in his professional capacity qua the complainant. He was acting as a needy person and persuaded the creditor to give him an amount of Rs.3000. If that amount was not paid back, civil remedy was available to the complainant and if the cheque had bounced after the coming into force of S.138 of the Negotiable Instruments Act, 1881, it might have resulted in criminal litigation, but, however, so far as the professional misconduct is concerned, we fail to appreciate as to how the Disciplinary Committee of the State Bar Council held that the appellant qua the complainant had committed any professional misconduct because he had taken a hand loan from the complainant-respondent and not repaid it.”

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Learned counsel for the petitioner then relied on the

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Apex Court judgment in Noratanmal Chouraria v M.R.Murli and another (AIR 2004 SC 2440). In that case, the Advocate concerned was the tenant of the respondent and there was litigation between the parties. The landlord approached the Bar

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WPC.Nos.3704 & 3705/13

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Council alleging that on three occasions, the advocate assaulted him by himself and his henchmen. Bar Council of Tamil Nadu initiated proceedings on the complaint and referred the matter to the Bar Council of India which found that the factum of occurrence of the incidents were not reliable. That order was challenged and the Apex Court examined the matter and took the view that professional or other misconduct committed by the member of a profession should ordinarily be judged qua profession. Thereafter examining the tenability of the complaint, the Apex Court upheld the order passed by the Bar Council of India.

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Both these judgments show that the Apex Court has only held that the misconduct alleged against an advocate must ordinarily be judged qua profession. In these judgments, the Apex Court has not laid down any principle that conducts of an advocate which are not commensurate with the nobility of the legal profession, and which renders him unworthy of the confidence of the community in him as an officer of the Court, do not fall within the expression “other misconducts” occurring in section 35(1) of the Advocates Act. In my view, having regard to the plain language of section 35(1), such a principle could not

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WPC.Nos.3704 & 3705/13

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have been laid down also.

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While interpreting section 35 of the Advocates Act, this Court cannot be oblivious of the necessity of the standard and ethics that a member of the legal profession should maintain, to retain the nobility of this profession. Any contrary approach to the issue would prove Clarence Darrow's statement, “the trouble with law is lawyers” true. In this context, it is relevant to refer to few judgments rendered by the Apex Court. First is Satish Kumar Sharma v. Bar Council of H.P [(2001) 2 SCC 365], where in paragraph 10, it was held thus;

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“10. The profession of law is called a noble profession. It does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive in its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich, traditions consistent with its grace, dignity, utility and prestige. Hence the provisions of the Act and Rules made thereunder inter alia aimed at to achieve the same ought to be given effect to in their true spirit and letter to maintain clean and efficient Bar in the country to serve cause of justice which again is noble one”.

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Second is Dhanraj Singh Choudhary v. Nathulal Vishwakarma [(2012) 1 SCC 741], in which the Court held thus;

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WPC.Nos.3704 & 3705/13

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23.The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate's attitude towards and dealings with his client have to be scrupulously honest and fair.

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24.In V.C.Rangadurai v. D.Gopalan Krishna Iyer, J, stated (SCC p.311, para 5)

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“5. Law's nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community.”

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25.Any compromise with the law's nobility as a profession is bound to affect the faith of the people in the rule of law and, therefore, unprofessional conduct by an advocate has to be viewed seriously. A person practising law has an obligation to maintain probity and high standard of professional ethics and morality.”

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25. Having referred to these judgments, I shall refer to

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Dastane v. Shrikant (2001 KHC 497), where the scope of Section

¶127

35 was examined and the Apex Court held thus;

¶128

15. Chapter V of the Advocates Act 1961 (for short, “the Act”) contains provisions for dealing with the conduct of Advocates. The word “misconduct” is not defined in the Act. S. 35 of the Act indicates that the misconduct referred to therein is of a much wider import. This can be noticed from the wordings employed in sub-s. (1) of S. 35 of that section. It is extracted herein:

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“Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any Advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee”.

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16. The collocation of the words “guilty of professional or other misconduct” has been used for the purpose of conferring power on the Disciplinary Committee of the State Bar Council. It is for equipping the Bar Council

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WPC.Nos.3704 & 3705/13

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with the binocular as well as whip to be on the qui vive for tracing out delinquent Advocates who transgress the norms or standards expected of them in the discharge of their professional duties. The central function of the legal profession is to help promotion of administration of justice. Any misdemeanor or misdeed or misbehaviour can become an act of delinquency, if it infringes such norms or standards and it can be regarded as misconduct.

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17. In Black’s Law Dictionary “misconduct” is defined as “a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawfulbehaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.”

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18. The expression “professional misconduct” was attempted to be defined by Darling J. in A Solicitor exp the Law Society, in re (1912) 1 KB 302 in the following terms.

¶136

“If it is shown that an Advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct.”

¶137

19. In R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264 : (2000 AIR SCW 3049 : AIR 2000 SC 2912) this Court has quoted the above definition rendered by Darling J., which was subsequently approved by the Privy Council in George Frier Grahame v. Attorney General, AIR 1936 PC 224 and then observed thus:

¶138

“Misconduct envisaged in S. 35 of the Advocates Act is not defined. The section uses the expression “misconduct, professional or otherwise”. The word “misconduct” is a relative term. It has to be considered with reference to the subject-matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct”.

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WPC.Nos.3704 & 3705/13

¶140

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¶141

In Bal Dev Singh Dhingra and Ors., v. Madan Lal Gupta and Ors. (AIR 1999 SC 902), the principles laid down in the judgment in In the matter of D, an Advocate of the Supreme Court (AIR 1956 SC 102), which arose in the context of the pari materia provision contained in Section 10 of the Indian Bar Councils Act were reiterated and the Apex Court has held thus;

¶142

8. Learned counsel for the respondent was right when he contended placing reliance upon a judgment of this Court in the matter of D, an Advocate of the Supreme Court (AIR 1956 Sc 102), that the words 'professional or other misconduct' would includes misconduct committed by an advocate not in his capacity as a professional but in any other capacity. The said decision was rendered in the light of section 10 of the Bar Councils Act, 1926 which contains pari materia provision dealing with 'professional or other misconduct' of advocates. Interpreting the phrase 'professional or other misconduct', it was held by this court as under:-

¶143

“The Indian Legislature by using the words 'professional or other misconduct' in Section 10, Indian Bar Councils Act intend to confer on the Court disciplinary jurisdiction to take action in all cases of misconduct whether in a professional or other capacity leaving to the discretion of Court to take action only in suitable cases.”

¶144

It must be noted that the aforesaid observations were made in the light of factual matrix in the case wherein an advocate of the Bombay High Court is said to have committed breach of Bombay Prohibition Act by consuming illicit liquor. It is obvious that the said misconduct of the advocate was not in his 'professional' capacity but in 'other' capacity as a responsible citizen while he was active practitioner of law. He had not consumed liquor after ceasing to practise as an advocate. Section 10 of the Bar Councils Act, 1926 therefore conferred disciplinary jurisdiction on the High Court in such cases of misconduct of advocates.

¶145

WPC.Nos.3704 & 3705/13

¶146

:19 :

¶147

9. It is in the light of the aforesaid facts that the said decision of this Court was rendered. Therefore, we must proceed on the basis that 'professional misconduct' as laid down in Section 35(1) of the Act can rope in practising advocates who commit either 'professional misconduct' or 'other misconduct'.

¶148

Thus, from what is discussed above, it can be seen

¶149

that the expression “misconduct” is not defined in the Advocates Act and should be construed and understood bearing in mind that the Advocates Act is to regulate a privileged class of persons, who because of their privileged status are subject to certain disabilities and rigid rules of professional conduct. Further, the words “guilty of professional and other misconduct” have been used in Section 35(1) of the Act for the purpose of conferring power on the State Bar Council to trace out delinquent advocates who transgress the norms and standards befitting the high and honourable profession to whose privileges they have been admitted. Apart from the plain language of Section 35(1), the judgment in Bal Dev Singh Dhingra's case (supra) clarifies that Section 35(1) will rope in practicing advocates who commit professional misconducts and also other misconducts which render them unworthy to wear the robes of this noble profession.

¶150

WPC.Nos.3704 & 3705/13

¶151

:20 :

¶152

It is in this background one has to look at the allegations in the complaints made against the petitioner which are now pending consideration of the Disciplinary Committee of the Bar Council. A reading of Ext.P2 complaint in WP(C) No. 3704/13 shows that it is the specific case of the complainant that the petitioner has filed the complaint against him acting as an agent of persons with vested interest in order to harass public servants. He has also given the details of several other complaints filed by the petitioner against similarly situated persons. In so far as Ext.P3 complaint in WP(C) No. 3705/13 is concerned, specific allegation has been levelled that the petitioner has filed the complaint before the Enquiry Commissioner accepting the monetary considerations from the rivals of the complainant only to spoil his chances as a candidate in the assembly elections. These allegations, if proved, would certainly show that the petitioner was not maintaining the standard expected of him, being a member of the noble profession. Therefore, on the material available before this Court, I am unable to accept the case of the petitioner that the pleadings in the complaints do not prima facie disclose a case of misconduct

¶153

WPC.Nos.3704 & 3705/13

¶154

:21 :

¶155

against him. In these circumstances, both the contentions raised by the learned counsel for the petitioner are rejected. It is clarified that nothing stated in this judgment shall be construed as a pronouncement on the merits of the allegations against the petitioner and that it is for the parties concerned to prove their respective cases before the Disciplinary Committee.

¶156

In so far as the second prayer in the writ petitions are concerned, the prayer sought is to quash the orders passed by the Disciplinary Committee setting aside the ex parte orders to the extent it imposed costs of 2,500/- each. Imposition of costs is entirely in the discretion of the authority which passes the order and unless the order is shown to be perverse or that the costs imposed is disproportionate, this Court will not be justified in interfering with the exercise of such discretion. On facts, I am not persuaded to think that 2,500/- each imposed as costs is vitiated on any of these grounds justifying interference in a writ petition.

¶157

Writ petitions therefore fail and are dismissed. No costs.

¶158

Sd/-

¶159

ANTONY DOMINIC, JUDGE

¶160

Adv.P.Nagaraj v. Bar Council of Kerala

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Adv.P.Nagaraj v. Bar Council of Kerala

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