Topic: V.P. Kumaravelu vs The Bar Council of India - Gross negligence involving moral turpitude

V.P. Kumaravelu vs The Bar Council Of India
Bench: S.C. Agrawal, Sujata V. Manohar - Date of Judgment: 04/02/1997

The following Judgment of the Court was delivered: Mrs. Sujata V. Manohar, J.

These appeals arise from a common order dated 15.5.1986 passed by the Disciplinary Committee of the Bar Council of India in D.C.I.T. Case     Nos.48 and 49 of 1985. These     two cases pertain to the appellant and were transferred to the appellant and were transferred to the Disciplinary Committee of the    Bar Council of India under the provisions of Section 36B(1) of the    Advocates Act, 1961 as the    Disciplinary Committee of the Bar Council of Tamil Nadu could not dispose of these cases within the prescribed period of one year. On or about 21st    of October, 1978, the appellant was appointed as City Government Pleader in all the Civil Courts constituted in    Madras other than the High Court of Madras. The work was spread over several courts in Madras and the appellant as the city    Government Pleader was required to conduct all the civil matters pending in the civil courts of Madras except the High     Court, on behalf of the Government and also to give his opinion on these matters from time to time when required. The appellant was allowed the assistance of juniors who were not appointed by the Government. The respondent was provided with staff.

The first    complaint which     was filed by the Commission and Secretary,     Government of Tamil Nadu against     the appellant before the Disciplinary Committee    of the     Bar Council of Tamil Nadu    bearing D.C. Case No. 48/1985 was in respect of Suit No.400 of 1978 on the file of the City Civil Court at Madras. The Government Pleader was instructed to appear on behalf of the State Government in that case. The Memo of     Appearance had been filed by the earlier Government Pleader. The records of the case had been sent to the Office of the    Government Pleader and he had also been asked to prepare a written statement. However, when the appellant was appointed as Government Pleader, a fresh Memo of Appearance on his    behalf had not been filed in the said suit nor were the papers put up before him. As a result, on 28.6.1979, the suit was decreed ex parte against the State. An application was thereafter    moved by the appellant     to set aside the ex parte order. The court     set aside the ex parte order on condition that    the Government    should pay Rs.20/- as costs. However, the cost was     not deposited. As a     result     the application to set aside the ex parte order was dismissed on 27-9-1979. Consequently     the suit was decreed ex parte with costs.

This suit    had been filed by the Travancore Textiles Pvt. Ltd. against the    State of Tamil Nadu relating to a lease of land admeasuring 1240 sq.ft.     forming part of a channel. The plaintiff had prayed for a declaration that the annual rent of Rs.3609.66 as also the Municipal taxes levied were illegal. The plaintiff had also    made a     prayer     for refund of Rs.25,575.40 with interest at the rate 12% p.a. and for     a further declaration that he need not pay any rent after 30.6.1974. The complainant alleged that as a result of the gross negligence on the part of     the appellant     the Government of Tamil Nadu had suffered substantial loss. The appellant contended that since the office staff had not put up the     papers of this case before him, it     was through inadvertence that the suit was decreed ex parte. The Bar Council of India has, however, noted that at the time when an application for setting aside the ex parte order was filed the appellant must have known about the pendency of the case, and the serious consequences that would follow if the order for payment    of costs were not complied with. The Bar Council has held that for     this lapse the appellant cannot raise the plea    that the staff was negligent. Now, although the application for setting aside the ex parte order is filed by the appellant, it is not clear from the record whether    the appellant had personally    appeared in court for setting aside the ex parte order or was personally aware of or was appraised of    the order of costs which had been while setting aside the ex parte order. In fact, the Bar Council of India has noted mitigating circumstance which go to show that blame cannot be attached solely    to the     appellant. It has noted that from     the correspondence which is brought on record, it is clear that at no point of time the papers pertaining to the case were placed before the appellant except for moving an application for setting aside the    ex parte order. It is also not known whether the application was actually moved by the appellant himself or through a junior. It is not clear whether the order which was passed     on this application for payment of costs was brought to the notice of the appellant either. The Bar Council has also noted that after the summons in the case was served on the State of Tamil Nadu    through     the Secretary to the Government of Tamil    Nadu in June 1978, a letter was sent on 27th of June, 1978 by the then Government Pleader. Thereafter the Collector of Madras vide his letter dated 20th of September, 1978, sent    details     and office remarks on the plaintiff's claim. At this time the appellant was not     Government Pleader. These papers were received by his predecessor who made an endorsement on the letter of the Collector of Madras to the effect that remarks/statements be prepared. It is also not clear to whom this     matter     was assigned. According to the distribution of work, copy of which has been placed on record by the appellant, it was the duty of     G. Jagannathan, the then Assistant to submit the records of the case of the City Government    Pleader     for preparation of     the written     statement. In     the letter addressed by the Collector of Madras    he had    directed the Executive Deputy Tehsildar, Egmore to meet the Government advocate with the concerned file and    to render necessary assistance in preparing the draft written statement. But it appears that no one attended the office of the Government Pleader with the concerned file for preparing the written statement.

After the    appellant took     charge     as the Government Pleader, he had also notified that representatives of the departments of     the Government should remain present personally with     files on various dates of hearing so that suitable instruction can be made available to the Government Pleader for conducting the case. But this instruction also does not seem    to have been    followed. It is in these circumstances that the case of the State went unrepresented. The Bar Council has said that the office staff of the appellant was also responsible for misleading the appellant and keeping him in the dark.    The Government    also did not care to depute a responsible officer to attend the office of the Government Pleader.

After noting these circumstance the Bar     Council of India has imposed a "lighter" punishment of severe reprimand after noting that the appellant is a fairly senior advocate in the    State of Tamil Nadu and has a good reputation and a good standing at the Bar.

The next complaint No.17    of 1984     is in    respect of a suit filed by an employee of the Directorate of Education of the State of Tamil Nadu challenging his date of birth. Summons was forwarded to the appellant along with a letter date 24.9.1979 informing him that the date of hearing in the case was 10.10.1979. There is an endoresment made by the office of the Government Pleader on that letter. Thereafter another letter    of 25.9.1979 was received by the office of the Government    Pleader from the Directorate of Education, Madras on which an endorsement was made, "remarks/written statement to be prepared". These remarks are in the same handwriting in    which the endoresment on the previous letter is made. However, no memorandum for appearance was filed in that suit on behalf    of the     State    of Tamil Nadu. On 26.10.1979 an ex parte     decree came to be passed in    that suit.

The appellant has contended that the office had not put up these papers before     him. Therefore, there had been a lapse in attending to    this case. Here also the Bar Council of India has accepted that there was no deliberate lapse on the part of the appellant. His only lapse was not to have kept the office in order. The Bar Council has held, "It may be that     due to     rush of work office might have kept him in dark and the papers might not have been put up......". The finding against the appellant, therefore, is that he was not able to     control his office on     account of rush of work and also because the staff     which was allotted to him had been negligent in the performance of its duties and had not put up the    papers in the concerned cases before him to enable him to    take appropriate action. The appellant has been held guilty of "constructive negligence", and the Bar Council of India has reprimanded him.

Looking to     all the circumstances     the appellant     was negligent as he had failed to attend to the two cases. His client had to suffer ex parte decrees. There is, however, no finding of any mala fides on the part of the appellant or any deliberate    inaction on his part in not attending to the two cases. Will his negligence or "constructive negligence" as the     respondent-Bar Council puts it,     amount     to professional misconduct? Whether negligence will amount to professional misconduct or not will depend upon the facts of each case. Gross negligence in the discharge of duties partakes of shades of delinquency and would     undoubtedly amount to professional misconduct. Similarly, conduct which amounts to dereliction of duty by an advocate towards his client or towards his    case would amount to    professional misconduct. But negligence without    moral turpitude or delinquency may not amount to professional misconduct. In the case of In re a vakil (1926 ILR 49 Mad. 523), Coutts Trotter, C.J., said, "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 reflection adverse to his professional honour rests upon Mr.M." In the case of     P.D. Khandekar v. Bar Council of Maharashtra & Ors. (AIR 1984 SC 110 at 113), this Court said, "There is a world of difference between the giving of improper legal advice and the     giving     of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of     his profession does not amount to     professional misconduct...........For     and advocate to act towards his client otherwise than    with utmost good faith is unprofessional. When an advocate is entrusted with    a brief     he is    expected to follow norms of professional ethics and try to protect interests of     his client in relation to whom he 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 the lawyer is expected     to give proper and dispassionate legal advice to the client for the     protection of     his interests".

In the present case, there is failure on the part of the appellant to discharge his duties     towards his client. This failure, however, is not deliberate. It is on account of heavy pressure of work coupled with lack of diligence on the part of his staff as well as on the part of his client in not    sending a responsible person with papers to     the office    of the Government pleader.    However, while     the appellant cannot be held responsible for his client's failure to attend the office, the appellant cannot shift the blame entirely    on his    staff. As the head of the office it was his     responsibility     to make sure that the work is properly attended to and the staff performs its functions properly and diligently. The     appellant has, therefore, rightly been held guilty of negligence. However, in     the absence of any moral turpitude or delinquency on his part, we cannot sustain the    finding of the Bar council of India that his conduct in the facts and circumstances of this case amounts to professional misconduct. In fact    the various mitigating circumstances have been noted by the Bar council of India itself. The negligence on the part of the appellant in these circumstances cannot    be construed as professional misconduct.

The appeals are, therefore, allowed.    There will, however, be no order as to costs.