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An Advocate V.B.B. Haradara-1989 Air 245: Advocate Acted Without Consent Of A Client

The Advocates Act and professional misconduct were both issues in the case. An advocate had been suspended for three years by a disciplinary committee due to allegations of professional misconduct. The lawyer's longtime client Gautam Chand hired him to file a lawsuit against Shri S. Antanaraju in order to recover the sum of Rs. 30,098. The Advocate directed his assistant to bring the lawsuit.

Following this, the respondent makes the claim that, without his knowledge, the appellant filed a document notifying the court that the dispute had been resolved amicably and obtained the case's dismissal. The respondent further asserted that he was not given dates related to the matter. Although there was no accusation that specifically described the type and scope of professional misconduct, the State Bar Council contacted the appellant for comments.

The State Bar Council filed a case, but it couldn't be resolved in time, thus it was forwarded to the Bar Council of India. He was found guilty by the disciplinary committee, which decided that a three-year practice ban was appropriate. The advocate filed an appeal in response to this disciplinary committee ruling.

The Supreme Court ruled that the disciplinary committee had failed to provide the advocate a fair hearing and that the facts had not been proven beyond a reasonable doubt. Since it deals with the ethics of the legal profession, the case is a landmark one. The case discusses professional misbehaviour and concerns professional honour.

Primary Details Of The Case
Case No.: Writ Petition (Criminal) 316 of 1987
Jurisdiction: Supreme Court
Case Decided On: September 29, 1998
Legal Provision Involved: Advocates Act, 1961, Section 38
Judges: Justice M. P. Thakker, Justice B. C. Ray

Brief Facts Of The Case
The case was filed in 1989 and in this case the appellant was an advocate. The suit dealt with the matter of recovery of Rs. 30,098/-. The complainant left the responsibility of the case to the advocate (appellant) who had given the responsibility for the matter at hand to his junior colleague. There are two versions to the story. As per the version of the complainant, the Respondents has failed to inform him and without taking his due consent pulled back the case.

They did also inform him that his presence would be needed in court and without giving him the following information they got the suit dismissed through court. The complainant believed his legal needs were infringed. The version of the appellant advocate and his junior colleague (respondent 2) where quite different. The appellant contended that he came to know the complainant through an old acquaintance Gautam Chand. On Gautam Chands request the case of the complainant was taken up by the advocate and passed on to his colleague.

That time the colleague worked with the appellant advocate but during the dismissal of the suit the junior advocate had his own office. Gautam Chand was in business with Haradara (the plaintiff) and the defendant in the suit initiated by them through the appellant was Anantaraju. Anantaraju was a common adversary for both Gautam Chand and Haradara. Gautam Chand had paid earnest money to Antaraju for the execution of a sale deed of property in his name.

However, the sale deed was not executed during the required time. Gautam Chand sent instructions to the advocate (appellant) and his colleague (respondent no 2 Ashok) to get the suit dismissed as the sale deed was achieved. Initially the court denied the request, post which Gautam Chand published a notice stating that he has dealt with the property matter and the object of the suit is achieved and no one should interfere as it's the personal matter of Anantaraju and Gautam Chand. RW 3 (Gautam Chand) and the complainant acted in complete concert and had common interests.

The court dismissed the suit in 1981 on December 10. The complainant Haradara gained knowledge the suit in which he was the plaintiff which was against Anantaraju had been dismissed by the court he made no attempts to restore the suit or to meet the appellant. The appellant contended that Haradara the complainant has knowledge of the dismissal and yet failed to immediately act upon it. Also, that he only acted on the claims made by Gautam Chand who was a close friend of Haradara and they filed the suits together towards the common adversary Anantaraju.

Issues Involved In The Case:
  1. Should the appellant have been informed and apprised of the particular and specific charge and allegation made against him regarding the true nature and content of the professional misconduct?
  2. It also questioned whether the doctrine of benefit had been utilized. Did the disciplinary authority establish the basic allegations against the appellant while deciding on the question of the punishment to be inflicted on him?
  3. Will the appellant be punished under misconduct rules on absence of any dishonesty or intentional motives? Would it amount to non-culpable negligence or would it be professional misconduct?

Legal Provisions Involved In The Case
The appeal was instituted as per Section 38 of the Advocates Act. On looking at the legal landscape in the area of disciplinary proceedings this scenario emerges:
"In exercise of powers under section 35 contained in Chapter V entitled conduct of Advocates, on receipt of a complaint against an Advocate (or suo moto) if the State Bar Council has reason to believe that any Advocate on its role has been guilty of professional or other misconduct. Disciplinary proceeding may be initiated against him."

Neither Section 35 nor any other provision of the Act defines the expression legal misconduct or the expression misconduct. The Disciplinary Committee of the State Bar Council is authorized to inflict punishment, including removal of his name from the rolls of the Bar Council and suspending him from practice for a period deemed fit by it, after giving the Advocate concerned and the Advocate General of the State an opportunity of hearing.

The disciplinary committee under Section 42(1) of the Advocates Act is vested in the same power as a civil court for summoning and enforcing attendance of a person and also the rights to examine him on oath. The procedure to be followed in an Enquiry under Section 35 is outlined in Part VII of the Bar Council of India Rules (1) made under the authority of section 60 of the Act.

Judgement In Brief
It was held that the advocate wasn't afforded a proper and reasonable opportunity to express his side of the story. There were no specific charges devised against him and he wasn't informed of the charges against him. The doctrine of benefit of doubt had not been reasonably established the intentions of the advocate were not considered. The motives of the advocate weren't considered while judging the case and its outcome by the disciplinary committee.

The court also felt that such a judgment before being given by the BCI had to have been discussed properly and the judgment should leave no place for any reasonable doubt. The court held the opinion that a detailed inquiry ought to be held as the discipline committee is giving a very heavy sentence of removing the advocate from the bar. The conclusion cannot only be taken in terms of evidence and has to be supported by a proper enquiry till the doctrine of benefit of doubt has been reasonably established.

The judgment held that the petitioner was not afforded a proper opportunity to explain the situation. The petitioner was not informed of the charges and claims levied against him. He also wasn't given an opportunity to explain his side. The constitution also allows for hearing both sides and the principle of Audi Alteram Partem. The principles of natural justice were being violated in this case and it was rightly noticed by the Supreme Court.

The Supreme Court also felt that the State Bar Council has not accorded a proper opportunity to the appellant to fight the allegations levelled against him. It was also held that the Bar Council had not taken the help of doctrine of benefit of doubt. Nor had it been established that the advocate had any mens rea or negative intentions towards the client. They set aside the order of BCI blaming and punishing the advocate for unfairness, negligence and professional misconduct.

The Supreme Court remitted the matter to BCI. It was also held that such a stringent punishment of disbarring him from practice is unfair considering that the advocate wasn't given appropriate chances to explain his conduct and also wasn't informed of the charges against him. The court also referred to the way Bar Council of India acted in the O N Mohindroo case while giving the appropriate judgment.

In the case the court had held that the Advocates Act and its rules are solely responsible for regulating the machinery and mechanisms of professional conduct. In the case of Mohindroo also the Bar Council of India stated that there shouldn't be too much of technicality present in terms of the work of disciplinary committees especially when professional behaviour and honour is on the line.

This case was seminal as it dealt with the matters of ethics in court just like the ON Mohindroo case. If the Supreme Court would not remit the claim back to BCI then this would violate the principles of justice and would promote improper hearings.

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