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Case Analysis: Rajendra V Pai v/s Alex Fernandes

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Rajendra V Pai v/s Alex Fernandes - Appeal (civil) 6142-6144 of 2001

Case No: Appeal (Civil) 6142- 6144 of 2001 - Jurisdiction: Supreme Court of India - Case Decided on: April 9, 2002
Judges:

Justice R. C. Lahoti.
Justice P. Venkataram Reddi

Legal Provision involved:

Section 35 of the Advocates Act 1961 &
Section 38 of the Advocates Ac 1961

Brief Facts Of The Case

That in the instant case the appellant is an advocate by profession and is also a member of Bar Council of Maharashtra and Goa of which he is debarred of which he had moved an appeal before the Hon'ble Supreme Court of India against the order.
That in the instant case after analyzing the whole case it appears that there were about 150 villagers including appellants relatives/ family members lands were acquired in large scale land acquisition proceedings.
That the appellant being an advocate was much interested Inasmuch as the appellant was an advocate and also personally interested in defending against the proposed acquisition of land belonging to his family members, the villagers either on their own or on persuasion confided in the appellant, who played a leading role initially in contesting the land acquisition proceedings and later in securing the best feasible quantum of compensation.

Cause of action in the instant case which lead to filing the present appeal before the Hon'ble Supreme Court of India.

That instant case by order dated 22/01/2000, passed under Section 35 of the Advocates Act, 1961 the appellant's name has been directed to be removed from the State roll of advocates as the appellant being an advocate on the rolls of the Bar Council of Maharashtra and Goa, and was been found guilty of professional misconduct.
That pursuant to which the appellant preferred an appeal to the Bar Council of India which too was dismissed on 22/12/2000 by the Bar Council of India. That being aggrieved by the above two orders the appellant preferred an appeal under section 38 of the Advocates act.

Arguments presented and allegations alleged by the respondent in the instant case before the Hon'ble Supreme Court of India

That the respondent in the instant case submitted that the appellant solicited professional work from the villagers; that he settled contingent fee depending on the quantum of compensation awarded to the claimant; and that he identified some claimants in opening a bank account wherein the cheque for the awarded amount of compensation was lodged and then the amount was withdrawn.
That pursuant to which the counsel for the respondent further pleaded that the complaint filed by the respondent did not suffered any financial loss on account of the appellant.

Arguments presented by the Appellant before the Hon'ble Supreme Court of India

That the counsel for the appellant submitted that that the appellant did not solicit professional work as such and in fact the villagers confided in him because of his being an advocate, also looking after litigation relating to his family land, and the villagers had voluntarily agreed to contribute to a collective fund raised for covering the expenses of litigation as they were likely to make an overall saving in litigation expenses by fighting collectively as a group and it is out of this fund that the appellant incurred expenses including those by himself.
That So far as false identification in opening the bank account is concerned the appellant acted irresponsibly when he relied on other villagers who persuaded him to make an identification which only was acceptable to the authorities on account of his being an advocate. That this fact finds support from the circumstance that out of little less than 150, only 3 of the litigating landowners have filed these complaints to Bar Council.
That at last the counsel for the appellant pleaded most passionately that it was the first fault, if at all, of the appellant and if debarred from practise for his life at his age yet in early forties, the appellant and his family would be completely ruined.

Judgement In Brief

That the court specifically stated that in a group litigation wherein a little less than 150 persons were involved only 3 have found a cause for grievance inspiring them to complain against the appellant is a factor of some relevance.
That the Court further held that debarring a person from pursuing his career for his life is an extreme punishment and calls for caution and circumspection before being passed. That undoubtedly the appellant should not have indulged into prosecuting or defending a litigation in which he had a personal interest in view of his family property being involved.
That on the totality of the facts and circumstances of the case the bench stated that it would meet the ends of justice if the appellant is suspended from practise for a period of seven years.

Legal Aspects 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.

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 practise 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.

Judgment Analysis/ Conclusion
That the present appeal which was filed before the Honorable Supreme Court of India was specifically filed the to set aside the order dated 22/01/2000 by which the appellant name was removed from State roll of advocates i.e. Maharashtra and Goa Bar Council as the appellant was found guilty of professional misconduct under 35 of the Advocates Act. That the present case solely deals with the relationship and duties of an advocate towards their client and their client's interest.

That the present case setup an cogent example that everything is governed by law and that there is procedure to do certain act in the dignified manner and non compliance of procedure is nothing but an abuse of process of law and when found guilty action shall be taken.

That high standards of ethics and morality in professional career particularly of an advocate must be maintained and cases of proved professional misconduct severely dealt . That the instant case categorically shows the awareness and responsibility of the judiciary and the Bar Council's of various states and as well as Bar Council of India towards the citizens in order to save the citizens from this new creed litigants who are doing mockery of litigation and are misguiding as well as harassing the citizens as per their whims and fancies.

That the court, in dealing with cases of professional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character.

That is it very pertinent to mention here that the judgement given by the bench in the instant case is very much reasonable as order dated 22/01/2000 did not ascertained/ bothered to check the past of the appellant. But the two judge bench in the while hearing the appeal from order dated 22/01/2000 ascertain the facts and circumstances of the case in total and then modified the punishment as there was no previous misconduct record of the appellant and also the kept in view that if the appellant is debarred from court for his whole lifetime because of only one mistake will not be tenable in the eye of law.

That in Noratanmal Chouraria v. M.R. Murli it was held that the Quantum of punishment should be determined by applying the test of proportionality and having regard to the nature of acts complained of. That in the above mentioned case the bench too determined the quantum of punishment passed by the order dated 22/01/2000 was not proportionate therefore reducing it to seven years.

That it very much note worthy to mention that the Bar Council of Maharashtra and Goa set up an example by debarring such litigant to enter into premises of court room in order to avoid growth of such litigation and wholly condemned the act.

That the two judge bench of the Hon'ble Supreme Court keeping in view that the Indian Judicial system believe in reformative and deterrent theories of punishment reduced the punishment in order to meet the ends of justice rather from debarring the appellant and his name being removed from the above mentioned bar council for lifetime the bench directed that the practise license of appellant to be remained suspended for a period seven years and also to set an example in order to prevent recurrence of such incidents.

That the said judgment is passed through proportionality keeping in view of the past of the appellant and conduct of the offence committed by the appellant and also by means of this judgment the bench warned the litigant at large level to avoid such type of practices which indeed pollute the stream of justice and therefore suspended the appellant from practise for a period of seven years.

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