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Pandurang Dattatraya Khandekar v/s Bar Council of Maharashtra, Bombay and Others

Facts- The complainants alleged various acts of professional misconduct against the appellant and Agavane. According to them, the appellant an Agavane sometimes impersonated as other advocates for whom the briefs were meant and at times they directly approached the clients and adopted questionable methods charging exorbitant fees. The State Bar Council referred to four specific charges relating to them, two of impersonation as A. D. Ghospurkar and N. L. Thatte and depriving these gentlemen of the briefs meant for them. The State Bar Council held that these two charges have not been substantiated and the disciplinary Committee of the Bar Council of India has not gone into them. Both the Disciplinary Committee of the Bar Council of India and the State Bar Council however found the appellant and Agavane to be guilty of giving improper legal advice and held the charge of professional misconduct proved, but having regard to the fact that they were junior members of the bar, the Disciplinary Committee has taken a lenient view and passed the sentence indicated above. In dealing with the question of punishment to be imposed on them, the Disciplinary Committee observes :We take into consideration the age of the advocates, the families they have to maintain, the environments in which they practice and the standard which is maintained in such an environment is not very high as the Bar Association rules certify toutism and provide for toutism which could be unthinkable anywhere else.

The gravamen of the charge against the appellant and Agavane relates to the giving of improper legal advice on two specific counts, namely : (1) on January 7, 1974 the appellant and Agavane are alleged to have got the remarriage of a couple S. B. Potdar and Smt. Leelawati Dhavale performed although their divorce was not legal. The accusation is that the appellant and Agavane induced Potdar and Smt. Dhavale to part with Rs. 100 towards their professional fee on the faith of an assurance that the affidavit sworn by them before the Sub-Divisional Magistrate, Poona to the effect that they had divorced their respective spouses and had got married at Poona on January 7, 1974 as per Hindu rites would be sufficient proof of their marriage (2) On February 22, 1974 the appellant and Agavane drew up an affidavit containing a recital that Smt. Sonubai Girju Valekar of Loni Bhapkar, Tehsil Baramati, District Poona had made a gift of her lands to her grand-daughter Smt. Mangala Ramesh Ghorpade. The charge is that she had met all the lawyers except these two and all of them advised her too give the market value of the land intended to be gifted and pay ad valorem stamp duty thereon indicating the amount of stamp duty and the registration charges payable, but these two lawyers told her that she should not unnecessarily spend a large amount over the stamp duty and registration charges and they would instead have the work done within an amount of Rs. 50 which was finally settled at Rs. 45. The charges leveled against the appellant and Agavane are serious enough and if true in a case like the present, the punishment has to be deterrent, but the question still remains whether the charges have been proved.

The appellant virtually pleads that the case against him is a frame-up. As to the incident of January 7, 1974, the appellant pleads that the affidavit sworn by Potdar and Smt. Dhavale was prepared on their instructions as they represented that they had divorced their respective spouses and expressed that they wanted to marry each other on that very day and leave Poona. His case is that they represented that the priest was insisting upon an affidavit as regards their divorce as a precaution before performing their marriage and therefore they wanted to swear an affidavit to that effect. Regarding the incident of February 22, 1974, there was a complete denial that the appellant drew up an affidavit containing a recital that Smt. Sonubai had made a gift of her lands to her grand-daughter Smt. Mangala which he handed over to her on receipt of Rs. 45 as his professional fee.

In an appeal under Section 38 of the Act this Court would not, as a general rule, interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. Finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence.

It is argued that the finding as to professional misconduct on the part of the appellant and Agavane reached by the Disciplinary Committee was not based on any legal evidence but proceeds on mere conjectures and surmises. The case against the appellant and Agavane rests upon professional misconduct and not any other conduct. The question is whether there was any evidence upon which the Disciplinary Committee could reasonably find that they have been guilty of professional misconduct within the meaning of subsection (1) of Section 35 of the Act. The test of what constitutes "grossly improper conduct in the discharge of professional duties; has been laid down in may cases.

Judgement

We are constrained to say that the evil of touting has been in existence since ancient times and still is a growing menance, and the bar is open to the accusation of having done nothing tangible to eradicate this unmitigated evil. The persons most affected by this system are the junior lawyers as a class. Some lawyers may well expound unblushingly the doctrine of getting on, getting honour and at last getting honest. If it is generally known that a person however honest has got on and got honour through the patronage of touts, the bar should decline to show such a man any honour or consideration whatsoever. We impress upon the Bar Council of India and the State Bar Councils that if they still take strong action to eradicate this evil, it would lead to a high standard of propriety and professional rectitude which would make it impossible for a tout to turn a penny within the precincts of the law courts.

Finally, it is the solemn duty of the Bar Council of India and the State Bar Councils to frame proper schemes for the training of the junior members of the bar, for entrusting of work to them, and for their proper guidance so that eventually we have new generation of efficiently trained lawyers. It is regrettable that even after more than two decades that the Advocates Act was brought on the Statute Book, neither the Bar Council of India nor the State Bar Councils have taken any positive steps towards ameliorating the conditions of the members of the bar, particularly of the junior members. Sub-section (3) of Sub-sections 6 and 7 of the Act provide that the State Bar Councils and the Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of (a) giving financial assistance to organised labour welfare schemes for the indigent, disabled or other advocates, and (b) giving legal aid or advice in accordance with the rules made that behalf. Sub-section (3) thereof provide that they may receive any grants, donations, gifts or benefactions for the above purposes, which shall be credited to the appropriate fund or funds under that Sub-section. The Bar Council of India and the State Bar Councils hold very large funds, may be to the tune of rupees one crore and above, but no positive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, particularly the junior members of the bar. It is with a deep sense of anguish that one finds the legal profession in a state of total disarray and for the majority it is a continuous struggle for existence. The hardest hit are the junior members. We expect that the matter will receive the attention that it deserves.

In the result, the appeal partly succeeds and is allowed. The order of the Disciplinary Committee of the Bar Council of India holding the appellant and A.N. Agavane guilty of professional misconduct is set aside. The proceedings drawn against them under Sub-section (1) of Section 35 of the Advocates Act, 1961 are dropped. We hope and trust that they would not by their conduct or behaviour prove themselves to be unworthy to remain as members of the great profession to which they belong.

There shall be no order as to costs.

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Regards,

Anusha Singh