IMPORTANT SUPREME COURT AND HIGH COURT JUDGMENTS

RELATING TO DOMESTIC ENQUIRY

Article 311 (2) (b) of the Constitution

Union of India and Another and Tulasiram Patel
In the said case, the Supreme Court has held that a Government Servant can be dismissed
or removed from service without holding an enquiry under Art. 311 (2) (b) of the
Constitution provided it was in the interest of the public. The Court observed,
“Government Servants who are inefficient, dishonest, corrupt or have become a security
risk should not continue in service and should be summarily dismissed or removed from
service and instead of being allowed to continue in it at public expense and at
public detriment.” The above ruling was given by a Constitution Bench with a 4-1
majority. The judgment was written by Justice D.P. Madon Pathok, Mr. Justice Thakkar,
dissented. The Judges overruled the ruling of a three Judge Bench of the Supreme Court
in Challappan’s Case which held that a delinquent Government Servant could be
dismissed or removed from service only after he was given an opportunity to be heard.

Conditions Laid Down Under Article 311 (2): Stipulates three conditions where an
enquiry need not be held before the dismissal or removal of a Government Servant.
(i) Where a person is dismissed, removed or reduced in rank on the ground of misconduct
which has led to his conviction on a criminal charge.
(ii) Where the authority empowered to dismiss or remove a person orto reduce him in
rank is satisfied that for some reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such an enquiry.
(iii) Where the President or the Governor as the case may be is satisfied that in the
interest of the Security of the State, it is not expedient to hold such enquiry. Referring to
Article 311 (2) (b), the judges have pointed out that sometimes by not taking prompt
action might result in the situation worsening and at times becoming uncontrollable. This
could also be construed by the trouble makers and agitators as a sign of weakness
on the part of the authorities. It would not be reasonably practicable to hold an inquiry
where the Government Servant terrorises, threatens or intimidates disciplinary authority
or the witnesses to the effect that they are prevented from taking action or giving
evidence against him. It would not be reasonably practicable to hold the enquiry where an
atmosphere of violence or general indiscipline and insubordination prevails.

Referring to article 311 (2) (b) the judges said it would be better for the disciplinary
authority to communicate to the Government Servant its reason for dispensing with the
inquiry. The Court also observed that the stipulated clause regarding no inquiry in certain
case was Mandatory and not Directory.

Justice R. Krishna Iyer on Evidence Act and Domestic Enquiry It is well settled that
in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence
Act may not apply. All materials which are logically probative for a prudent mind
are permissible. There is no allergy to heresay evidence provided it has reasonable
nexus and creditability. It is true that departmental authorities and administrative
tribunals must be careful in evaluating such material and should not glibly swallow what
is strictly speaking not relevant under the Indian Evidence Act. The essence of a judicial
approach is: objectivity, exclusion of extraneous materials and consideration and
observance of natural justice. Of course, fair play is the basis and if independence of
judgment vitiates the conclusion reached, such findings even though of a domestic
tribunal cannot be held good. The simple point is, was there some evidence or was there
no evidence - not in the sense of technical rules governing regular court proceedings but
in a fair/common sense way as men of understanding and wordly wisdom will accept.
Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal
is beyond scrutiny. (1982 II LLJ State of Haryana v Rattan Singh 46, SC).

Supreme Court on Evidence Act And Domestic Enquiry

The Evidence Act does not apply to enquiries conducted by the tribunals even though
they may be judicial in character. The law requires that such tribunals should observe
rules of natural justice in the conduct of the enquiry and it they do so their decision is not
liable to be impeached on the ground that the procedure followed was not in accordance
with that which obtains in a court of law (Union of India and T.R. Varma Vol. 13 FJR
237 SC)

Will the Omission to Produce the Preliminary Reports Vitiate the Enquiry?
The omission by the company to produce the preliminary reports on the strength of which
the charges against these workmen were found will not vitiate the enquiry. Those reports
were collected by the company to satisfy itself whether disciplinary action against the
workmen should be launched or not. They did not form part of the evidence before the
enquiry officer nor were they relied on by them for arriving at their findings. That being
so, it was not obligatory on the company to disclose them and the omission could not be
ground for holding that their non-disclosure was non-observance of the rules of natural
justice.

Tata Engineering & Locomotive Co. 1960 IILLJ 812 SC.

Resignation Pending Disciplinary Action
By entering into contract of employment a person does not sign a bond of slavery and a
permanent employee cannot be deprived of his right to resign. A resignation by an
employee would however normally require to be accepted by the employer, in order to be
effective. It can be read in certain circumstances an employer would be justified in
refusing to accept an employee’s resignation as for instance when an employee wants to
leave in the middle of a work in which his presence and participation are necessary.
An employer can also refuse to accept resignation when there is a disciplinary enquiry
pending against an employee. If he is allowed to resign when an enquiry is pending
against him, it would enable him to escape the consequences of adverse findings against
him. Therefore on such occasion the employer is justified in not accepting the
resignation. (Central Inland Water Transport Corporation Ltd. And Tarunkanti
Sengupta and Another 1986 II LLJ 171 SC).

Should an Advocate be Permitted in all Domestic Enquiries?

In the Board of Trustees v Nadkarni case reported in 1983 I LLJ Page 1 - the Supreme
Court stated that in the past there was informal atmosphere before a domestic enquiry
forum and that strict rules of procedural law did not hamstring the enquiry. We have
moved far away from this stage. The situation is where the employer has on his pay rolls
Labour Officers. Legal Advisors, Lawyers in the garb of employees and they are
appointed as Presenting Officers and the delinquent employee pitted against such legally
trained personnel has to defend himself. The weighted scales and tilted balance can only
be partly restored if the delinquent is given the same legal assistance as the employer. It
applies with equal vigour to all those who must be responsible for fairplay. When the
Bombay Port Trust Advisor and Junior Assistant Legal Advisor would act as the
Presenting cum Prosecuting Officer in the enquiry, the employee was asked to be
represented by a person not trained in law, was held utterly unfair and unjust. The
employee should have been allowed to appear through legal practitioner and
failure vitiated the enquiry.

Bombay High Court Decision

Apart from the provisions of law, it is one of the basic principles of natural justice that
the enquiry should be fair and impartial. Even if there is no provision in the Standing
Orders or in Law, wherein an enquiry before the domestic mind, if he seeks permission to
appear through a legal practitioner the refusal to grant this request would amount to a
denial of reasonable request to defend himself and the essential principles of natural
justice would be violated (Ghatge Patil Transport pvt. Ltd. and B.K. Patel and others
1984 II LLJ BombayHigh Court, Page 121).

Calcutta High Court Decision

Though the court should discourage involvement of legal practitioners in simple domestic
enquiries, like disciplinary enquiries, for avoiding complications and delays, yet the
court’s refusal of such representation would constitute failure of the enquiry itself.
Principles of Natural Justice demands conceding to such a claim. No general rule can be
laid down in this respect but the issue must be left for the consideration in the light of the
facts and circumstances of each individual case (India Photographic Co. v Saumitra
Mohan Kumar1984 I LLJ 471 HC)

Scope of Investigation by Labour Courts and Industrial Tribunals

In cases of termination, generally the tribunal would be required to find out whether the
same amounts to victimisation or unfair labour practice or was it so capricious or
unreasonable as to lead to an inference that it has been based on some ulterior motives. In
other words, it is to enquire into the bonafides of the management (Assam Oil Co. 1960
ILLJ SC, Chartered Bank 1960 IILLJ 222 SC), The Indian Iron and Steel Case (1958
I LLJ 260 SC) and subsequent decisions have laid down that there could be an
interference:
(i) When there is want of good faith,
(ii) When there is victimisation or unfair labour practice,
(iii) When the management head been guilty of a basic error orviolation of principles of
natural justice, and
(iv) When, on the materials before the tribunal, the finding is found to be completely
baseless of perverse.

In the Industan Construction Case, 1965 (10) FIR, the Supreme Court again laid down
that the tribunal cannot substitute its own appraisal of the evidence for that of the officer
conducting the domesticenquiry.

Want of Good Faith: This only means that on the evidence available the conclusion
must have come objectively - not having made up one’s mind to find the worker
concerned guilty. It was pointed out in the Mackenzie Co. (1959 ILLJ 285 SC), the
management must have materials before them to base its conclusions.

Victimisation or Unfair Labour Practice : The Supreme Court in the Bharat Sugars
case (AIR 1950 188 SC), observed that the word Victimisation was not a term of Act or
Law and it only meant that a certain person has become a victim and that he has been
unjustly dealt with. Where the punishment imposed was shockingly disproportionate to
the misconduct, victimisation is inferred. In (1061 IILLJ 644 SC), Bharat Sugars Case,
the Supreme Court held that before an industrial adjudication can find an employer guilty
of an intention to victimise, there must be reason to think that the employer was intending
to punish workmen for their union activities while purporting to take action ostensibly for
some other activity. Basic Error : If the evidence in disciplinary proceedings instituted
in respect of a concerted action shows that ‘A’ was guilty actually, but quite erroneously
the decision of the enquiry officer states that ‘B’ was guilty, it will be a basic error of
fact.

Baseless or Perverse Findings: It has been pointed out by the courts that the findings
could be said to be perverse only if it is shown that such a finding is not supported by any
evidence or is entirely opposed to whole body of the evidence adduced Doom Dooma
Tea Case (1960 IILLJ 56 SC) and Hamdard Dawakhana Case (1962 IIILJ 762 SC).
Merely that the authority could possibly come to a different view on the evidence
recorded would not make the finding of the domestic tribunal perverse. The Calcutta
High Court (1966 IILJ 535) said ‘a wrong finding is not necessarily a perverse finding’.

Personal Bias: The principles governing the doctrine of ‘bias’ are:- (a) No man shall be a
judge in his won case; and (b) Justice should not only be done, but manifestly and
undoubtedly seen to be done, (Subba Rao. J AIR 1959 SC 1378) There is authority for
the view that, where there are certain rules governing the procedure of enquires, the mere
violation of such rules will not give a party a cause of action unless there has been, in
consequence, prejudice caused. Veerabadreshwar Rao & Oil Mill Vs Collector,
Central Excise, (AIR 1966).

Protection During Pendency of Proceedings (Sec. 33 ID ACT.) :

Under this section when a proceeding is pending before a Conciliation Officer, Labour
court, Arbitrator or Industrial Tribunal, no workman concerned in the industrial dispute
pending before the said authorities could be punished by way of dismissal or discharge
except under conditions :
(a) If the misconduct with which the workman had been charged is connected with the
dispute pending, he cannot be discharged or otherwise punished except with the express
permission of the authority before whom the proceeding is pending.
(b) Where misconduct is not connected with the proceeding pending, the workman could
be dismissed or discharged for the misconduct provided he is paid or tendered a month’s
wages and D.A. and an application is simultaneously made before the authority oncerned
for approval of the action taken.
(c) Protected workmen cannot be discharged or punished whether by dismissal or
otherwise except, with the express permission in writing of the authority concerned.
Any violation of the provisions stated above during pendency of proceedings before
labour court or tribunal can be taken up by the employee as complaint under sec. 33A to
be adjudicated and an award passed.

Section 2 A of Industrial Disputes Act: Previously individual workman could not raise
industrial disputes with reference to their dismissal or discharge. It can only be by
collective action. As a result of the introduction of this section on 1st December 1965,
even individual workman could directly approach the conciliation officer / Government
claiming relief for dismissal or discharge and this claim is deemed to be an ‘industrial
dispute’.

Quantum of Punishment: With the introduction of sec. IIA of I.D. Act, with effect from
15.12.1971 the absolute right of the employer to decide on the quantum of punishment
has been abridged and the tribunals will have power for the first time to differ both on a
finding of misconduct arrived at and also on the punishment imposed by the employer.
Firestone Case (1973 ILLJ 278 SC).

Evidence before the Tribunal : If no domestic enquiry is at all held or if the enquiry is
in any defect it is optional for the management to adduce evidence before the tribunal and
justify the dismissal or hold an enquiry afresh, if the domestic enquiry is set aside on
technical grounds Motipur Sugar Case (1965 IILJ 162 SC). It has also been held by the
Supreme Court in the Ritz Theatre Case (1962 IILJ 498) that the adduction of evidence
before the tribunal may be without prejudice to the management’s stand that the domestic
enquiry was complete and proper in itself.

Discrimination: An act of discrimination could only occur if amongst those equally

situated an unequal treatment is meted to one or more of them. While some of the
workmen participated in an illegal strike instigating others also to participate and also
intimidated the officers were charge sheeted leaving others who participated, the same
cannot be said to be discrimination.Motor Industries Case (1969 lIILJ 673 SC.)

Retrospective Dismissal: Punishment with retrospective effect will be invalid and

inoperative, if it is not specifically provided for in the standing orders. in such cases, the
employer would be at liberty to set right the situation by issuing another order
prospectively. The workman would be entitled to wages for the intervening period.

Criminal and Domestic Enquiry Proceedings: The scope of these two is different. The
degree of proof varies. Just as criminal judgment is not binding upon a Civil Court,
acquittal by a Criminal Court of a person does not bar the domestic authority to pursue
the enquiry proceedings or to come to a different conclusion.

Gherao : In Jay Engineering Case (AIR 1968 Cal. 407), the Calcutta High Court
defined Gherao as a physical blockade of a target either by encirclement of forcible
occupation accompanied by wrongful confinement as also unlawful assembly. Distinctive
character of Gherao is existence in it of coercive method. It is an offence punishable
under the Indian Penal Code. The employer will have every right to take disciplinary
action against employees for participation in Gherao whether peaceful or disorderly and
punish them after holding a fair and proper enquiry.

Refusal to Obey Transfer Orders: Where the contract of employment provides for
transfer, the order of dismissal for refusal to obey the transfer order will be justified
except, where the order was punitive, malafide or in the nature of victimisation. Where
the service rule provided for the transfer of an employee from one company to another
company under the same owners, the dismissal for disobeying the order of transfer was
held justified by the Supreme Court in Madhuband Colliery Case (1966 IILJ 738).
Discharge of Probation: Discharge of a probationer without assigning reason during the
period of probation as per contract of service or standing order will be valid, except
where it is held to be punitive or malafide.

Losing of Lien: Where an employee lost his lien on employment by operation of tanding
order for continuous absence or over-stayed of leave, the same does not amount to
termination by employer. Losing of lien in such a case is not by any positive action by the
employer but by automatic operation of standing order.
SUPREME COURT ON SEC. 11 A OF INDUSTRIAL DISPUTES ACT, 1947.
Section 11 A:

Powers of Labour Courts, Tribunals and National Tribunals to give

appropriate relief in case of discharge or dismissal of workmen: Where an industrial
dispute relating to the discharge or dismissal of a workman has been referred to a Labour
Court, Tribunal or National Tribunal for adjudication and. In the course of the djudication
proceedings the Labour Court Tribunal or National Tribunal as the case may be, is
satisfied that the order of discharge or dismissal was not justified, it may, by its award set
aside the order of discharge or dismissal and direct reinstatement of the workman on such
terms and conditions. if any, as it thinks fit, or give such other relief to the Workman
including the award of any lesser punishment in lieu of discharge or dismissal as the
circumstances of the case may require: Provided that in any proceeding under this section
the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on
the materials on' record and shall not take any fresh evidence in relation to the matter.
The legal position as on 15.12.1971 (When Sec. 11 A introduced in the Industrial
Disputes Act) was brought into force regarding the power of labour court or Industrial
Tribunal when deciding the dispute arising out of dismissal or discharge of a workman
could be summarised as follows:
(i)The right to take disciplinary action and to decide upon the quantum of punishment are
mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has
power if action of the employer is justified:
(ii) Before imposing the punishment, the employer is expected to conduct a proper
enquiry in accordance with the provisions of the Standing Orders, if applicable, and
principles of natural justice. The enquiry should not be an empty formality.
(iii) When a proper enquiry has been held by an employer, and the finding misconduct is
the plausible conclusion flowing from the evidence adduced at the said enquiry, the
tribunal has no jurisdiction to sit in judgment over the decision of the employer as an
appellate body.
(iv) Even, if no enquiry has been held by an employer or if the enquiry held by
him is found to be defective, the tribunal in order to satisfy itself about the legality
and validity of the order has to give an opportunity to the employer and employee
to adduce evidence before it. It is open to the employer to adduce evidence for the first
time justifying his action; and it is open to the employee too to adduce evidence.
(v) The effect of an employer not holding an enquiry is that the tribunal would not
have to consider only whether there was a prima facie case. On the other hand, the issue
about the merits of the impugned order of dismissal or discharge is at large before the
tribunal and the latter, on the evidence adduced before it, has to decide for itself whether
the misconduct alleged is proved. In such cases, the point about the exercise of
managerial functions does not arise at all. A case of defective enquiry stands on the same
footing as no enquiry.
(vi) The tribunal gets jurisdiction to consider the evidence placed before it for the first
time in justification of the action taken only if no enquiry has been held or after the
enquiry conducted by an employer is found to be defective.
(vii) It has never been recognised that the tribunal should straightaway, without anything
more, direct reinstatement of a dismissed or discharged employee, once it is found that no
domestic enquiry has been held or the said enquiry is found to be defective.
(viii) An employer who wants to avail himself of the opportunity of adducing evidence
for the first time before the tribunal to justify his action, should ask for it at the
appropriate stage. If such an opportunity is asked for, the tribunal has no power to refuse.
The giving of an opportunity to an employer to adduce evidence for the first time before
the tribunal is in the interest of both the management and the employee and to enable the
tribunal itself to be satisfied about the alleged misconduct.
(ix) Once the misconduct is proved either in the enquiry conducted by an employer or by
the evidence placed before a tribunal for the first time, punishment imposed cannot be
interfered with by the tribunal except in cases where the punishment is so harsh as to
suggest victimisation.
(x) In a particular case, after setting aside the order of dismissal, whether a workman
should be reinstated or paid compensation is, as held by this court in Management of
Panitole Tea Estate v The Workman (ILLJ 233, 1971), within the judicial decision of
a labour court or tribunal. To invoke Sec.11 A, it is necessary that an industrial dispute of
the type mentioned therein should have been referred to an Industrial Tribunal for
adjudication the tribunal has to be satisfied that the order of discharge or dismissal was
not justified. If it comes to such a conclusion, the tribunal has to set aside the order and
direct reinstatement of the workman on such terms as it thinks fit. The tribunal has also
power to give any other relief to the workman including the imposition of a lesser
punishment having due regard to the circumstance. The proviso casts a duty on the
tribunal to rely only on the section, in our opinion it indicates a change in the law, as laid
down by this court, has been affected. It is well settled that in constructing the provisions
of a welfare legislation, the court should adopt, what is described as a beneficent rule of
construction. If two constructions are reasonably possible to be placed on the section, it
follows that the construction which furthers the policy and object of the Act and is more
beneficial to the employees has to be preferred. Another principle to be borne in mind is
that the Act in question which intends to improve and safeguard the service conditions of
an employee, demands an interpretation liberal enough to achieve the legislative purpose.
But the court should not also lose sight of another canon of interpretation that a statute, or
for that matter, even a particular section, has to be interpreted according to its plain words
and without doing violence to the language used by the legislature. Another aspect to be
borne in mind will be that there has been a long chain of decisions of this court, referred
to exhaustively earlier, laying down various principles in relation to adjudication of
disputes by Industrial Courts arising out of orders of discharge or dismissal. Therefore, it
will have to be found from the words of the section whether it has altered the entire law,
as laid down by the decision, and if so, whether there is a clear expression of that
intention in the language of the section. The limitations imposed on the powers of the
tribunal by the decision in Indian Iron & Steel Co. Ltd. Case (Supra) can no longer be
invoked by an employer. The tribunal is now at liberty to consider not only whether the
finding of misconduct recorded by an employer is correct, but also to differ from the said
finding if a proper case is made out. What was once largely in the realm of the
satisfaction of the employer, has ceased to be so, and now it is the satisfaction of the
tribunal that finally decides the matters. If there has been no enquiry held by the
employer or if the enquiry is held to be defective, it is open to the employer even not to
adduce evidence for the first time before the tribunal justifying the order of discharge or
dismissal. The court is not inclined to accept the contention on behalf of the workman,
that the right of the employer to adduce evidence before the tribunal for the first time
recognised by this court in its various decisions has been taken away. There is no
indication in the section that the said right has been abrogated. If the intention of the
legislature was to do away with such a right, which has been recognised over a long
period of years, as will be noticed by the decisions referred to earlier it would have been
differently worded. Admittedly there are no express words to that effect and there is no
indication that the section has impliedly changed the law in that respect. Therefore, the
position is that even now the employer is entitled to adduce evidence for the first time
before the tribunal even if he had held no enquiry or the enquiry held by him is found to
be defective. Of course, an opportunity will have to be given to the workman to lead
evidence contra. The state at which the employer has to ask for such an opportunity has
been pointed out by this court in Delhi and General Mills Co. Ltd. (Supra). No doubt,
this procedure may be time consuming, elaborate and cumbersome. As pointed out by
this court in the decision just referred to above, it is open to the tribunal to deal with the
validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding
on the subject is in favour of the management, then there will be no occasion for
additional evidence justifying his action. This right in the management to sustain its order
by adducing independent evidence before the tribunal, if no enquiry has been held or if
the enquiry is held to be defective has been given judicial recognition over a long period
of years. It was agreed that even after Sec. 11 A the employer and employee can adduce
evidence regarding legality or validity of the domestic enquiry, if one had been held by
the employer. Having held that the right of the employer to adduce evidence continues
under the new section, it is needless to state that, when such evidence is adduced for
the first time, it is the tribunal which has to be satisfied on such evidence about guilt or
otherwise of the workman concerned. The law, as laid down by this court that under such
circumstances the issue about the merits of the impugned order of dismissal or discharge
is at large before the tribunal and that it has to decide for itself whether the misconduct
alleged is proved, continues to have full effect. In such a case, as laid down by this Court,
the exercise of managerial functions does not arise at all. Therefore, it will be seen that
both in respect of cases where a domestic enquiry has been held as also in cases where
the tribunal considers the matter on the evidence before it for the first time, the
satisfaction under Sec. 11 A, about the guilt or otherwise of the workman concerned, is to
come to a conclusion one way or other. Even in cases where an enquiry has been held by
an employer and a finding of misconduct arrived at, the tribunal can now differ from that
finding in a proper case and hold that no misconduct is proved. Under Sec. 11 A, the
Industrial Tribunal or the Labour Court may hold that the proved misconduct does not
permit punishment by way of discharge or dismissal and in cases under such
circumstances award to the workmen any lesser punishment instead. The power to
interfere with the punishment and alter the same has now been conferred on the tribunal
by Sec.11A.From the wording of the proviso to Sec.11A it could not be inferred that the
right of the employer to adduce evidence for the first time has been taken away as the
tribunal is obliged to confine its scrutiny only to the materials available at the domestic
enquiry. The expression materials on record occurring in the proviso cannot be confirmed
only to the matters which were available at the domestic enquiry. On the other hand the
materials on the record in the proviso must be held to refer to materials on record before
the tribunal. They take in:
1. the evidence taken by the management at the enquiry, or
2. the above evidence and, in addition, any further evidence before the tribunal, or
3. evidence placed before the tribunal for the first time in support of the action taken by
an employer as well as the evidence adduced by the workmen contra.
The above items by and large should be considered to be the materials on record as
specified in the proviso. The court is not inclined to limit that expression as meaning only
that material that has been placed in a domestic enquiry. The provision only confines the
tribunal to the materials on record before it as specified above, when considering the
justification or otherwise of the order of discharge or dismissal. It is obliged to consider
whether the misconduct is proved and the further question whether the proved
misconduct justifies the punishment of dismissal or discharge. It also prohibits the
tribunal from taking any fresh evidence either for satisfying itself regarding the
misconduct or for altering the punishment. From the proviso, it is not certainly possible to
come to the conclusion that when once it is held that an enquiry has not been held or is
found to be defective; an order reinstating the workman will have to be made by the
tribunal. Nor does it follow that the proviso deprives an employer of his right to adduce
evidence for the first time before the tribunal. The expression "fresh evidence" has to be
read in the context in which it appears, namely, as distinguished from the expression
materials on record. If so read, the proviso does not prevent any difficulty at all. The
Legislature in Sec. 11 A has made a departure in certain respects in law as laid down by
this court. For the first time, power has been given to a tribunal to satisfy itself whether
misconduct is proved. This is particularly so, as already pointed out by us, regarding even
findings arrived at by an employer in an enquiry properly held. The tribunal has also been
given power, also for the first time, to interfere with the punishment imposed by an
employer. When such wide powers have been now conferred on tribunals, the legislature
obviously felt that some restrictions have to be imposed regarding what matters could be
taken into account. Such restrictions are found in the proviso. The proviso emphasises
that the tribunal has to satisfy itself one way or other regarding misconduct, the
punishment and the relief to be granted to workman only on the basis of the materials on
record before it. The tribunal, for the purposes referred to above, cannot call for further or
fresh evidence, as an appellate authority may normally do under a particular statute, when
considering the correctness or otherwise of an order passed by a subordinate body. The
matter in the proviso refers to the order of discharge or dismissal that is being considered
by the tribunal. The court should hot be understood as laying down that there is no
obligation whatsoever on the part of an employer to hold an enquiry before passing an
order of discharge or dismissal. This court has consistently been holding that an employer
is expected to hold a proper enquiry according to the standing orders and principles of
natural justice. It has also been emphasised that such an enquiry should not be an empty
formality. If a proper enquiry is conducted by an employer and a correct finding arrived
at regarding the misconduct, the tribunal, even though it has no power to differ from the
conclusions arrived at by the management will have to give every cogent reasons for not
accepting the view of the employer. Further, by holding a proper enquiry, the employer
will also escape the charge of having acted arbitrarily or malafide. It cannot be over-
emphasised that conducting of a proper and valid enquiry, will improve the relationship
between him and the workmen and it will serve the cause of ·industrial peace. Further, it
will also enable an employer to persuade the tribunal to accept the enquiry as proper and
the finding also as correct.

Notes to Section 11 A
This section has no retrospective operation and therefore does not apply to disputes
which had been referred prior to the 15th December, 1971, on which date Sec. 11A was
brought into operation. (Workmen of Firestone tyre & Rubber Co. of India (P) Ltd. v
The Management and others - 1973 (1) LLJ 278, The Gujarat Mineral Development
Corporation v P.H. Brahmbhatt - 1974 (1) LLJ 97 and East India Hotels v Their
Workmen and others – 1974 LIC 532)
A direction withholding payment of back wages either fully or partially is undisputably
penal in nature. An award directing reinstatement of an employee without back wages
and without any other kind of punishment specified in the regulations of the management
is not bad merely because the employee was found guilty of misconduct, it in the opinion
of the tribunal the misconduct is not so grave as to warrant the extreme penalty of
discharge or dismissal. The term lesser punishment in the section cannot be restricted by
reading words which are not contained in the section. This section does not state that the
lesser punishment should be one which is provided in the Regulations or Standing
Orders of the management. The provision takes in its sweep all punishments lesser than
discharge or dismissal, whether provided for in the Regulations or Standing Orders of the
management or not. (Andhra Pradesh State Road Transport Corporation v Labour
Court, Guntur, and another - 1978 LIC. 359) Very wide powers have been conferred
by the legislature on the tribunals to decide the questions between the workmen and the
employer. They can even reappraise the evidence laid before the enquiry officer and
examine the correctness of his finding.

( CASE NO.: Appeal (civil) 1551 of 2000 PETITIONER: Zoroastrian Co-operative

Housing Society Limited and Another RESPONDENT: District Registrar Co-operative
Societies (Urban) and Others
DATE OF JUDGMENT: 15/04/2005
BENCH: B.N. AGRAWAL & P.K. BALASUBRAMANYAN JUDGMENT:
J U D G M E N T P.K. BALASUBRAMANYAN, J.)- having recognised the threat
to unity and integrity of the Nation, Her Excellency President of INDIA
directed the Union of India and the State Of Gujarat to challenge the above
verdict before the larger bench of Supreme Court- now it is the turn of
Amicus curiae Mr Harish Salve who faced loss of trust accusations from
Kamini Jaiswal appearing for an NGO: Citizens for Justice and Peace agaisnt
SIT ( Special Investigation Team) which was constituted by the apex court on
March, 2008 to probe into the sensitive post Godhra -Gujarat Riots Cases of
2002. Amicus curiae Mr Harish Salve appointed by Supreme Court rendered
the yeoman service till he fall pray to pecuniary gains and the political
expediency of Chief Minister Narendra Modi to engage him for appearing on
behalf of the Gujarat Government for defending the cops in the Isharat Jahan
fake encounter case.
Appearing for an NGO, Kamini Jaiswal listed out lapses on the part of the five member
Special Investigation Team (SIT) headed by ex-CBI Director R.K. Raghvan alleged that
some SIT members were now exposed being accused persons of having a role in the post-
Godhra riots in 2002 belonging to Gujarat State. The NGO Counsel explained the lapses
went to the root of the cases : Godhra Train Burning Case, Naroda Patiya, Naroda Gam,
Gulberg Society, Odey, Mehsana, Anand and Sabar kantha. The SIT is also probing the
complaint by Jakia Jafri widow of ex-MP Ehsan Jafri who was killed in the riots accusing
CM Narendra Modi and top politician of his Government and cops of the Gujarat State of
having aiding and abetting the riots. (Excerpts from report of TOI Mumbai: February 11,
2010.
Looking to the gravity and seriousness of the situation it is a classic case of Professional
Misconduct on the part of the Amicus curiae to accept the brief of State of Gujarat for
pecuniary gains without the prior sanction of Supreme Court of India or the other
aggreived party ( Complainant )... This act has brought disrepute to the dignity and
honour of the Profession of Advocates.

Citation : 2000 SOL Case No. 421

SUPREME COURT OF INDIA
Before :- Dr. A.S. Anand, CJI with R.C. Lahoti and K.G. Balakrishnan, JJ.
Civil Appeal No. 684 of 1997. D/d. 20.7.2000
H.V. Panchaksharappa - Appellant
Versus K.G. Eshwar - Respondent
For the Appellant :- Mrs. Rachna Gupta, Advocate.
For the Respondent :- Mr. K.R. Nagaraja and Mr. K.K. Tyagi, Advocates.
A. Constitution of India, Articles 141 and 226 - Advocates Act, Section 35 - Finding of
fact - Professional misconduct of advocate - Concurrent findings recorded by the State
Bar Council and Bar Council of India on correct and proper appreciation of evidence
available on record suffering from no infirmity - No interference by the court in appeal.
[Para 5]
B. Evidence Act, Section 114 - Presumption - Complainant pleaded in the complaint
that conversation was recorded on a tape and the same will be produced, but not
produced - Withholding of the tape held to be a serious lacuna in the case of the
complainant. [Para 6]
JUDGMENT
R.C. Lahoti, J. - The appellant engaged respondent, an advocate, to file a suit against
one Siddaramma Shetty for recovery of Rs. 60,175/- on the basis of a pronote in the court
of Civil Judge, Shimoga. The suit was numbered as O.S. No. 237/1986. During the
pendency of the suit, property situate in Nehru Road belonging to defendant Siddaramma
Shetty was got attached by a Court order. This suit was compromised on 16.1.1987. It
appears that the attachment of the property continued even after judgment. Prior to the
filing of O.S. No. 237/1986, the respondent as a lawyer, had also filed a suit on behalf of
Siddaramma Shetty before the Civil Judge. That suit was a partition suit and was
numbered as O.S. No. 119/1986. The property involved in the partition suit was the same
property which become subject-matter of attachment in O.S. No. 237/1986. In the
partition suit (O.S. No. 119/1986), admittedly the appellant was not a party. In that suit
Siddaramma Shetty had obtained an injunction against the defendants therein with regard
to the property situate at Nehru Road, subject-matter of attachment in O.S. No. 237/1986.
2. Despite the compromise entered into on 16.1.1987 in O.S. No. 237/1986, Siddaramma
Shetty did not pay the decretal amount. The respondent is stated to have filed a
miscellaneous application under Order XXIV Rule 4(2) read with Section 151 of the
Code of Civil Procedure, being No. 105/1990, on behalf of the appellant in the Court of
Principal Civil Judge, Shimoga entering full satisfaction of the decretal amount with a
further prayer to remove the order of attachment made in the suit. This application was
supported by an affidavit signed by the appellant and sworn before an Oath
Commissioner. Miscellaneous application No. 105/90, however, was not pressed and
subsequent thereto execution proceedings were initiated in respect of the decree in O.S.
No. 237/1986.
3. The appellant on coming to know that respondent was also a counsel for Siddaramma
Shetty in O.S. No. 119/1986 filed a complaint alleging professional misconduct against
the respondent under Section 35 of the Advocates Act before the State Bar Council at
Bangalore on 19.2.1992. One of the main allegations raised in that complaint was that the
respondent had filed Miscellaneous Application No. 105/1990 without any instructions
from the appellant. The respondent denied the allegations and asserted that Miscellaneous
Application No. 105/1990 had been filed on the instructions of the appellant and that the
appellant had himself signed the application as also the affidavit, which was duly sworn
before the Oath Commissioner. The Disciplinary Committee of the State Bar Council
dismissed the complaint filed against the respondent on 6.1.1995. Against dismissal of
the complaint, the appellant filed an appeal before the Disciplinary Committee of the Bar
Council of India. Vide order dated 25.3.1996, the Disciplinary Committee of the Bar
Council of India dismissed the appeal filed by the appellant. Hence, this appeal.
4. We have heard learned Counsel for the parties and perused the orders of the State Bar
Council as also the Bar Council of India and the records.
5. On the basis of the material placed before the State Bar Council, the Disciplinary
Committee came to the conclusion, after framing issues and recording of evidence, that
appellant had failed to prove commission of any misconduct by the respondent. It was
noticed that at the most the allegations levelled against the respondent could amount to a
negligent act of not disclosing to the appellant that he had also been retained in another
case by Siddaramma Shetty though there was no malicious intent involved. Since there
was no clash of interest in the two cases more particularly when the partition suit had
been filed prior in point of time to the suit for recovery at the instance of the appellant.
6. A charge of professional misconduct is in the nature of a quasi-criminal charge. Such a
charge requires to be provide in the manner of proving a criminal charge and the nature
of proof required to prove it, is that of beyond a reasonable doubt. Both, the State Bar
Council as also the Bar Council of India, on the basis of material on the record, found
that charge against the respondent has not been proved. In our opinion the findings,
recorded by both, the State Bar Council and the Bar Council of India, are on correct and
proper appreciation of evidence available on the record. The findings do not suffer from
any infirmity. Even if we were to overlook the assertions made on behalf of the
respondent regarding conduct of the appellant as disclosed in the counter-affidavit filed
by him in this Court on 14.10.1997, to which the appellant has filed no rejoinder, we find
that the appellant has miserably failed to establish that the respondent committed any
professional misconduct. We are not persuaded to accept the submission made by learned
Counsel for the appellant that application and the affidavit filed in Miscellaneous
Application No. 105/1990 had not been signed and verified by the appellant. The
submission is without any basis. The documentary evidence belies the submission.
According to the appellant, some conversation had taken place in the office of the
respondent when the appellant along with his friend Shri Nagaraja and Shri Jayanna had
gone to make enquiries about the Miscellaneous Application No. 105/1990 when the
respondent admitted filing of the miscellaneous application without instructions using
signatures obtained on blank papers. In the complaint it was stated that the conversation
was recorded on a tape and the same will be produced, but none was in fact produced.
The withholding of the tape-recorded conversation is a serious lacuna. The Bar Council
took a serious note of it, and in our opinion, rightly. Learned Counsel for the appellant
has failed to point out any infirmity in the impugned order.
7. After giving our careful consideration to the material and the record, we do not find
any reason to interfere with the order made by the State Bar Council and upheld by the
Bar Council of India and dismiss this appeal.
8. Before parting with this appeal, we would, however, like to observe that respondent
ought to have, according to the best traditions of the Bar, disclosed to the appellant that
he had been retained by the defendant in O.S. No. 119/1986. There may not have been
any clash of interest but since the defendant in O.S. No. 237/1986 was his client as a
plaintiff in O.S. No. 119/1986, the information should have been disclosed to the
appellant. It is just plain and simple obligation of a counsel to disclose such facts to his
client. Though, withholding of the information may not amount to professional
misconduct, nonetheless the action does not speak well of the conduct of the respondent.
On this account, we leave the parties to bear their own costs in this appeal.
Appeal dismissed.
------------RSL/81------------
R.D.Saxena Vs. Balram Prasad Sharma
PETITIONER:
R.D. SAXENA
Vs.
RESPONDENT:
BALRAM PRASAD SHARMA
DATE OF JUDGMENT: 22/08/2000
BENCH:
K.T.Thomas
JUDGMENT:
THOMAS, J.
The main issue posed in this appeal has sequential importance for members of the legal
profession. The issue is this: Has the advocate a lien for his fees on the litigation papers
entrusted to him by his client? In this case the Bar Council of India, without deciding the
above crucial issue, has chosen to impose punishment on a delinquent advocate debarring
him from practicing for a period of 18 months and a fine of Rs.1000/-. The advocate
concerned was further directed to return all the case bundles which he got from his client
respondent without any delay. This appeal is filed by the said advocate under Section 38
of the Advocates Act, 1961. As the question involved in this appeal has topical
importance for the legal profession we heard learned counsel at length. To appreciate the
contentions we would present the factual backdrop as under:
Appellant, now a septuagenarian, has been practicing as an advocate mostly in the courts
at Bhopal, after enrolling himself as a legal practitioner with the State Bar Council of
Madha Pradesh. According to him, he was appointed as legal advisor to the Madhya
Pradesh State Cooperative Bank Ltd. (Bank, for short) in 1990 and the Bank continued to
retain him in that capacity during the succeeding years. He was also engaged by the said
Bank to conduct cases in which the Bank was a party. However, the said retainership did
not last long. On 17.7.1993 the Bank terminated the retainership of the appellant and
requested him to return all the case files relating to the Bank. Instead of returning the
files the appellant forwarded a consolidated bill to the Bank showing an amount of
Rs.97,100/- as the balance payable by the Bank towards the
legal remuneration to which he is entitled. He informed the Bank that the files would be
returned only after setting his dues.
Correspondence went on between the appellant and the Bank regarding the amount, if
any, payable to the appellant

Page 1
R.D.Saxena Vs. Balram Prasad Sharma as the balance due to him. Respondent Bank
disclaimed any liability outstanding from them to the appellant. The dispute remained
unresolved and the case bundles never passed from appellants hands. As the cases were
pending the Bank was anxious to have the files for continuing the proceedings before the
courts/tribunals concerned. At the same time the Bank was not disposed to capitulate to
the terms dictated by the appellant which they regarded as grossly unreasonable. A
complaint was hence filed by the Managing Director of the Bank, before the State Bar
Council (Madhya Pradesh) on 3.2.1994. It was alleged in the complaint that appellant is
guilty of professional misconduct by not returning the files to his client. In the reply
which the appellant submitted before the Bar Council he admitted that the files were not
returned but claimed that he has a right to retain such files by exercising his right of lien
and offered to return the files as soon as payment is made to him.
The complaint was then forwarded to the Disciplinary Committee of the District Bar
Council. The State Bar Council failed to dispose of the complaint even after the expiry of
one year. So under Section 36-B of the Advocates Act the proceedings stood transferred
to the Bar Council of
India. After holding inquiry the Disciplinary Committee of the Bar Council of India
reached the conclusion that appellant is guilty of professional misconduct. The
Disciplinary Committee has stated the following in the impugned order: On the basis of
the complaint as well as the documents available on record we are of the opinion that the
Respondent is guilty of professional misconduct and thereby he is liable for punishment.
The complainant is a public
institution. It was the duty of the Respondent to return the briefs to the Bank and also to
appear before the committee to revert his allegations made in application dated 8.11.95.
No such attempt was made by him.
In this appeal learned counsel for the appellant contended that the failure of the Bar
Council of India to consider the singular defence set up by the appellant i.e. he has a lien
over the files for his unpaid fees due to him, has resulted in miscarriage of justice. The
Bank contended that there was no fee payable to the appellant and the amount shown by
him was on account of inflating the fees. Alternatively, the respondent contended that an
advocate cannot retain the files after the client terminated his engagement and that there
is no lien on such files. We would first examine whether an advocate has lien on the files
entrusted to him by the client. Learned counsel for the appellant endeavoured to base his
contention on Section 171 of the Indian Contract Act which reads thus: Bankers, factors,
wharfingers, attorneys of a High Court and policy- brokers may, in the absence of a
contract to the contrary, retain, as a security for a general balance of account, any goods
bailed to them; but no other persons have a right to retain, as a security for such balance,
goods bailed to them, unless there is an express contract to that effect.

Page 2
R.D.Saxena Vs. Balram Prasad Sharma
Files containing copies of the records (perhaps some original documents also) cannot be
equated with the goods referred to in the section. The advocate keeping the files cannot
amount to goods bailed. The word bailment is defined in Section 148 of the Contract Act
as the delivery of goods by one person to another for some purpose, upon a contract that
they shall be returned or otherwise disposed of according to the directions of the person
delivering them, when the purpose is accomplished. In the case of litigation papers in the
hands of the advocate there is
neither delivery of goods nor any contract that they shall be returned or otherwise
disposed of. That apart, the word goods mentioned in Section 171 is to be understood in
the sense in which that word is defined in the Sale of Goods Act. It must be remembered
that Chapter-VII of the Contract Act, comprising sections 76 to 123, had been wholly
replaced by the Sales of Goods Act, 1930. The word goods is defined in Section 2(7) of
the Sales of Goods Act as every
kind of movable property other than actionable claims and money; and includes stock and
shares, growing crops, grass, and things attached, to or forming part of the land which are
agreed to be severed before sale or under the contract of sale.
Thus understood goods to fall within the purview of Section 171 of the Contract Act
should have marketability and the person to whom it is bailed should be in a position to
dispose it of in consideration of money. In other words the goods referred to in Section
171 of the Contract Act are saleable goods. There is no scope for converting the case files
into money, nor can they be sold to any third party. Hence, the reliance placed on Section
171 of the Contract Act has no merit. In England the solicitor had a right to retain any
deed, paper or chattel which has come into his possession during the course of his
employment. It was the position in common law and it later recognized as the solicitors
right under Solicitors Act, 1860. In Halsburys Laws of England, it is stated thus (vide
paragraph 226 in volume 44): 226. Solicitors rights. At common law a solicitor has two
rights which are termed liens. The first is a right to retain property already in his
possession until he is paid costs due to him in his professional capacity, and the second is
a right to ask the court to direct that personal property recovered under a judgment
obtained by his
exertions stand as security for his costs of such recovery. In addition, a solicitor has by
statute a right to apply to the court for a charging order on property recovered or
preserved through his instrumentality in respect of his taxed costs of the suit, matter or
proceeding prosecuted or
defended by him. Before India attained independence different High Courts in India had
adopted different views regarding the question whether an advocate has a lien over the
litigation files kept with him. In P. Krishnamachariar vs. The Official Assignee of
Madras, (AIR 1932 Madras 256) a Division Bench held that an advocate could not have
such a lien unless there was an express agreement to the contrary. The Division Bench
has distinguished an earlier decision of

Page 3
R.D.Saxena Vs. Balram Prasad Sharma
the Bombay High Court in Tyabji Dayabhai & Co. vs. Jetha Devji & Co. (AIR 1927
Bombay 542) wherein the English law relating to the solicitors lien was followed.
Subsequently,
a Full Bench of the Madras High Court in 1943 followed the decision of the Division
Bench. A Full Bench of the Patna High Court in In re B.N. Advocate in the matter of
Misc. Judl. Case No.18/33 (AIR 1933 Pat 571) held the view that an advocate could not
claim a right to retain the certified copy of the judgment obtained by him on the premise
that an appeal was to be filed against it. Of course the Bench said that if the client had
specifically instructed him to do so
it is open to him to keep it. After independence the position would have continued until
the enactment of the Advocates Act 1961 which has repealed a host of enactments
including Indian Bar Council Act. When the new Bar Council of India came into
existence it framed Rules called the Bar Council of India Rules as empowered by the
Advocates Act. Such Rules contain provision specifically prohibiting an advocate from
adjusting the fees payable to him by a client against his own personal liability to the
client. As a rule an Advocate shall not do anything whereby he abuses or takes advantage
of the confidence reposed in him by his client,(vide Rule
24). In this context a reference can be made to Rules 28 and 29 which are extracted
below:
28. After the termination of the proceeding, the Advocate shall be at liberty to appropriate
towards the settled fee due to him, any sum remaining unexpended out of the amount
paid or sent to him for expenses, or any amount that has come into his hands in that
proceeding. 29. Where the fee has been left unsettled, the Advocate shall be entitled to
deduct, out of any moneys of
the client remaining in his hands, at the termination of the proceeding for which he had
been engaged, the fee payable under the rules of the Court, in force for the time being, or
by then settled and the balance, if any, shall be refunded to the client. Thus, even after
providing a right for an advocate to deduct the fees out of any money of the client
remaining in his hand at the termination of the proceeding for which the advocate was
engaged, it is important to notice that no lien is provided on the litigation files kept with
him. In the conditions prevailing in India with lots of illiterate people among the litigant
public it may not be advisable also to permit the counsel to retain the case bundle for the
fees claimed by him. Any such lien if permitted would
become susceptible to great abuses and exploitation. There is yet another reason which
dissuades us from giving approval to any such lien. We are sure that nobody would
dispute the proposition that the cause in a court/tribunal is far more important for all
concerned than the right of the legal practitioner for his remuneration in respect of the
services rendered for espousing the cause on
behalf of the litigant. If a need arises for the litigant to change his counsel pendente lite,
that which is more important should have its even course flowed unimpeded. Retention of
records for the unpaid remuneration of the advocate would impede such course and the
cause pending

Page 4
R.D.Saxena Vs. Balram Prasad Sharma
judicial disposal would be badly impaired. If a medical practitioner is allowed a legal
right to withhold the papers relating to the treatment of his patient which he thus far
administered to him for securing the unpaid bill, that would lead to dangerous
consequences for the uncured patient who is wanting to change his doctor. Perhaps the
said illustration may be an over-statement as a necessary corollary for approving the lien
claimed by the legal practitioner. Yet the illustration is not too far-fetched. No
professional can be given the right to withhold the returnable records relating to the work
done by him with his clients matter on the strength of any claim for unpaid
remuneration. The alternative is that the professional concerned can resort to other legal
remedies for such unpaid remuneration. A litigant must have the freedom to change his
advocate when he feels that the advocate engaged by him is not capable of espousing his
cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for
any other reason. For whatever reason, if a client does not want to continue the
engagement of a particular advocate it would be a professional requirement consistent
with the dignity of the profession that he should return the brief to the client. It is time to
hold that such obligation is not only a legal duty but a moral imperative. In civil cases,
the appointment of an advocate by a party would be deemed to be in force until it is
determined with the leave of the court, (vide order 3, Rule 4(1) of the
Code of Civil Procedure). In criminal cases, every person accused of an offence has the
right to consult and be defended by a legal practitioner of his choice which is now made a
fundamental right under Article 22(1) of the Constitution. The said right is absolute in
itself and it does not depend on other laws. In this context reference can be made to the
decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC
1910). The words of his choice in Article 22(1) indicate that the right of the accused to
change an advocate whom he once engaged in the same case, cannot be whittled down by
that advocate by withholding the case bundle on the premise that he has to get the fees for
the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the
proceedings that party must have the entire file with him to engage another advocate. But
if the advocate who is changed midway adopts the stand that he would not return the file
until the fees claimed by
him is paid, the situation perhaps may turn to dangerous proportion. There may be cases
when a party has no resource to pay the huge amount claimed by the advocate as his
remuneration. A party in a litigation may have a version that he has already paid the
legitimate fee to the advocate. At any rate if the litigation is pending the party has the
right to get the papers from the advocate whom he has changed so that the new counsel
can be briefed by him effectively. In either case it is impermissible for the erstwhile
counsel to retain the case bundle on the premise
that fees is yet to be paid. Even if there is no lien on the litigation papers of

Page 5
R.D.Saxena Vs. Balram Prasad Sharma
his client an advocate is not without remedies to realize the fee which he is legitimately
entitled to. But if he has a duty to return the files to his client on being discharged the
litigant too has a right to have the files returned to him, more so when the remaining part
of the lis has to be
fought in the court. This right of the litigant is to be read as the corresponding counterpart
of the professional duty of the advocate. Misconduct envisaged in Section 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.
Corpus Juris Secundum, contains the following passage at page 740 (vol.7): Professional
misconduct may consist in betraying the confidence of a client, in attempting by any
means to
practise a fraud or impose on or deceive the court or the adverse party or his counsel, and
in fact in any conduct which tends to bring reproach on the legal profession or to alienate
the favourable opinion which the public should entertain concerning it.The expression
professional misconduct was attempted to be defined by Darling, J., in In re A Solicitor
ex parte the Law Society [(1912) 1 KB 302] in the following terms: It 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 ishonourable by his professional brethren
of good repute and competency, then it is open to say that he is guilty of professional
misconduct. In this context it is to be mentioned that the
aforesaid definition secured approval by the Privy Council in George Frier Grahame vs.
Attorney-General, Fiji,(1936 PC 224). We are also inclined to take that wide canvass for
understanding the import of the expression misconduct in the context in which it is
referred to in Section 35 of the Advocates Act. We, therefore, that the refusal to return
the files to the client when he demanded the same amounted to misconduct under Section
35 of the Act. Hence, the appellant in the present case is liable to punishment for such
misconduct. However, regarding the quantum of punishment we are disposed to take into
account two broad aspects: (1) this court has not pronounced, so far, on the question
whether advocate has a lien on the files for his fees. (2) the appellant would have bona
fide believed, in the light of decisions of certain High Courts, that he did have a lien. In
such circumstances it is not necessary to inflict a harsh punishment on the appellant. A
reprimand would be sufficient in the interest of justice on the special facts of this case.

Page 6
R.D.Saxena Vs. Balram Prasad Sharma
We, therefore, alter the punishment to one of reprimanding the appellant. However, we
make it clear that if any advocate commits this type of professional misconduct in future
he would be liable to such quantum of punishment as the Bar Council will determine and
the lesser punishment imposed now need not be counted as a precedent.Appeal is
disposed of accordingly.
ILA VIPIN PANDYA v. SMITA AMBALAL
PATEL & ANR [2008] INSC 773 (1 May 2008)
S.B. Sinha & V.S. Sirpurkar
"REPORTABLE"
CIVIL APPEAL NO.5735 OF 2005 V.S. SIRPURKAR, J.

1. The order passed by the Division Bench in an appeal against the order passed by the
learned Single Judge of that Court is in question before us in this appeal. Respondent
No.1 (Smita Ambalal Patel) had taken out the Chamber Summons in Testamentary Suit
No.17 of 1996. By that summons she sought for the certified copies of Miscellaneous
Application No.1 of 2004 in the Testamentary Suit as also the transcript of tape-recorded
conversation between the appellant herein (Smt.Ila Pandya) and the respondent No.2
(Ms.Fereshte Sethna). The appellant had filed a Testamentary Petition No.132 of 1996
before the Bombay High Court for issuance of Letters of Administration in respect of the
estate of her late husband, namely, Shri Vipin Dalsukram Pandya. In this suit the present
respondent no.1 (Smita Ambalal Patel) had filed a caveat. Eventually the Testamentary
Petition came to be converted into Testamentary Suit. Ila Pandya was being represented
by respondent no.2 Ms.Fereshte Sethna in that suit. However, it seems that the appellant
sought for discharge of her counsel in the case. This was objected to by the respondent
no.2 who opposed the prayer of discharge. The appellant, therefore, had preferred a
Chamber Order before the Prothonotary & Senior Master, High Court of Bombay and
eventually the respondent no.2 was discharged by the order passed by the Additional
Prothonotary & Senior Master dated 23.2.2004.
In these proceedings respondent no.2 filed Miscellaneous Application No.1 of 2004
alleging therein that the appellant Ila Pandya had committed perjury and that an action
should be taken against her. This was probably done as some allegations were made by
the appellant against her erstwhile counsel, respondent no.2. The respondent no.2 in this
application had also tendered two audio cassettes in support of her Miscellaneous
Application No.1 of 2004.

2. The request made by the present respondent Smita Ambalal Patel in the Chamber
Summons was resisted both by the appellant as well as the second respondent.

3. It seems that on 25th March, 2004 the High Court passed an order directing that the
copies of the papers and proceedings in Miscellaneous Application No.1 of 2004 should
be furnished only to the appellant and the respondent no.2. The respondent no.1 raised an
objection to this by filing an application for speaking to the Minutes dated 5th May, 2004
which application was rejected by the High Court.

4. Even a praecipe was moved by Prothonotary & Senior Master before Justice S.K. Shah
on 7.6.2004 due to numerous applications preferred by the respondent no.1 for inspection
of documents pertaining to Miscellaneous Application No.1 of 2004 but the learned
Single Judge declined to pass orders on this praecipe. It is, however, an admitted matter
that even before that the respondent no.1 had already carried out the inspection of the
Miscellaneous Application No.1 of 2004.
5. It was on this background that the Chamber Summon was taken out by the respondent
no.1 seeking the certified copy of Miscellaneous Application No.1 of 2004 in
Testamentary Suit No.17 of 2006 and also for a direction to furnish to the respondent
no.1 the transcript of the two audio cassettes in respect of tape recorded conversation held
on Saturday, February 7, 2004 between Ila Pandya, the appellant herein and Ms.Fereshte
Sethna, the respondent no.2 herein.

6. In her application, the respondent no.1 submitted that she had required the
aforementioned documents for the purposes of producing in court particularly in this
Court where the Special Leave Petition filed against the order passed by the High Court
in Testamentary Suit No.17 of 1996 was pending. Needless to mention that by this time
the Testamentary Suit No.17 of 1996 was already disposed of and the Special Leave
Petition filed by the respondent no.1 was pending in this Court. We may state at this
juncture that in the said Special Leave Petition leave was granted and the Civil Appeal
arising out of the said SLP being Civil Appeal No.2455 of 2005 was disposed of by this
Court dismissing the same by its judgment dated 17.5.2007.

7. The learned Single Judge before whom the Chamber Summons was moved rejected the
same taking a view that Miscellaneous Application No.1 of 2004 was between the
Advocate Ms.Fereshte Shethna and her client Smt.Ila Pandya and the respondent no.1
himself was not even party to the same and as such she was totally unconcerned with the
Miscellaneous Application No.1 of 2004. The learned Single Judge also found that even
earlier similar request made by the respondent no.1 herein was rejected and as such it was
not necessary to accept her request for the supply of copies.

8. An appeal was filed before the Division Bench by the respondent no.1. The appeal
was, however, partly allowed, in that the Division Bench allowed her to have a copy of
the Miscellaneous Application No.1 of 2004 while it declined her request in respect of
the transcript of the tape- recorded conversation in the audio cassettes. The Division
Bench took the view that the said Miscellaneous Application was a part of record of the
court in the Testamentary Suit where the respondent no.1 was a party.
The Court, therefore, observed that when a party to the suit takes inspection and applies
for a certified copy of the record, it is a duty cast under Section 76 of the Evidence Act on
the court officer to make available the certified copies. According to the Division Bench
this was entirely a matter between the court and the applicant. The Division Bench did
note that the earlier application for certified copy was rejected but further took the view
that the learned Single Judge had not rejected the second application on that ground alone
but had also considered the merits of the case. According to the Division Bench the
respondent no.2 (appellant before the Division Bench) had demonstrated her interest in
the proceedings since her caveat was accepted and the court on that basis had converted
the proceedings in a regular suit. It was also noted that even she had instituted the
proceedings for administration of the estate of deceased Vipin Pandya. The court,
therefore, took the view that the litigation was with regard to entitlement of the
respondent no.1 on one side and the appellant on the other.

9. It is the abovesaid judgment which has been challenged by way of present appeal. Shri
R.F. Nariman, Senior Advocate urges before us that the Division Bench was in error in
ordering the copy of the Miscellaneous Application No.1 of 2004 to be supplied to
respondent no.1 particularly when the respondent no.1 had surreptitiously obtained the
inspection of the application even without notice to the present appellant or respondent
no.2. Learned counsel further submits that in view of the fact that Title Suit No.17 of
1996 has already been, admittedly, disposed of under such circumstance that there will be
no question of the copy of the Miscellaneous Application made in that suit being supplied
to the respondent no.1. It is also pointed out by the learned counsel that the very idea of
obtaining copy of the Miscellaneous Application was only to harass the applicant which
was clear from her application for the certified copy. It is also pointed out that there was
no question of supplying the copy now more particularly because even the appeal against
the judgment in Title Suit No.17 of 1996 is dismissed by this Court by a detailed
judgment. It is pointed out by the learned counsel further that the unfair advantage would
be conferred on the respondent no.1 and she would misuse the copy for harassing the
appellant herein.

10. As against this the respondent no.1 who appeared in person vehemently urged that
she was being harassed and that she had every right to obtain the copies of the
Miscellaneous Application No.1 of 2004.
During her marathon arguments she went on to the extent of attributing motives to the
Advocates of the other side. She also gave the whole history of the litigation which had
reached upto this Court earlier. In her written submissions she mainly complains against
the judgment of this Court passed in Civil Appeal No.2455 of 2005. The whole
arguments of the respondent were directed against the said judgment.

11. On this backdrop it is to be seen as to whether the judgment passed by the Division
Bench can be sustained.

12. We must point out the relevant Rules of The Bombay High Court (Original Side)
Rules, 1980. Chapter XIX deals with searches and certified copies. Rule 267 is for search
and certified copies of the documents to a party to a suit or matter. The Rule runs as
under:
"267. Search and certified copies of documents to a party to suit or matter - The
Prothonotary and Senior Master shall, on the application of any party to a suit or matter,
allow search or grant certified copies of all papers and proceedings in suit or matter, on
payment of the prescribed fees and charges.
When the party applies for a certified copy of a document on record, the Prothonotary
and Senior Master may, in his discretion grant such copy."
Rule 268 deals with search and certified copies of the documents to a person not a party
to suit or matter. The Rule reads as under:
"Search and certified copies of documents to a person not a party to suit or matter The
Prothonotary and Senior Master may, on the application of a person not a party to a suit
or matter, on sufficient cause being shown, allow search or grant certified copies of such
papers and proceedings in the suit or matter as the Prothonotary and Senior Master may
think fit, on payment of the prescribed fee and charges. When such person applies for a
certified copy of a part of document on record, the Prothonotary and Senior Master may,
in his discretion, grant such copy."
Reading the above two Rules together, it appears that a clear distinction is made between
the parties to the suit or matter and persons who are not parties to the suit or matter.
Again the Rules clearly differentiate between a suit and the matter. While there is a clear
cut right in favour of the party to the suit to get the search and certified copies, there is a
discretion in Prothonotary and Senior Master whether to grant or not such search and/or
certified copy to a person who is not a party to the suit or matter.

13. The Division Bench has held and in our opinion rightly, that the respondent no.1
though caveator in the beginning had become a party to the suit and was as such
interested in the matter. It cannot be disputed that the Miscellaneous Application No.1 of
2004 was filed by the respondent no.2 Fereshte Sethna against the appellant herein
praying therein for the action to be instituted against the appellant for perjury. The
evidence by the appellant was given in the suit itself and, therefore, the respondent no.1
who was a contesting party against the appellant, was certainly interested person since the
allegations of perjury were made against her adversary, the appellant herein. When the
respondent no.1 sought for the certified copies, it was not necessary to decide the merits
or the demerits of the Miscellaneous Application No.1 of 2004. If she had shown as to
how she was interested in the Miscellaneous Application and if such interest was
tangible, then even if she was not a party in the strict sense to the Miscellaneous
Application No.1 of 2004, the Prothonotary and Senior Master could have, in his
discretion, granted the certified copies of the Miscellaneous Application No.1 of 2004.
Though a view was taken by the learned Single Judge that she was not at all interested
and she could not be interested, the Division Bench has shown as to how she would be
interested in the Miscellaneous Application No.1 of 2004. Therefore, even if it is held
that she was not a party to the matter, i.e., Miscellaneous Application No.1 of 2004, since
she was a party to the suit out of which the Miscellaneous Application No.1 of 2004
emanated and as such the same could be treated as record of that suit, the Division Bench,
in our opinion, was right in taking the view that she was entitled to the certified copies.

14. Shri Nariman, learned Senior Counsel, however, suggested that the only idea of
having those copies was to harass and/or to misuse those copies against the appellant and
it was only for that reason that the appellant was opposing the grant of certified copies of
the Miscellaneous Application No.1 of 2004 to the respondent no.1. We do not think that
there is any possibility of misuse. It has not been shown as to in what manner the
respondent no.1 would be able to misuse the said documents.
Shri Nariman, however, expressed his apprehension that the respondent no.1 would insist
in joining the proceedings which were to follow the Miscellaneous Application No.1 of
2004. He, therefore, expressed that if the respondent is granted the certified copies, she
would jump into the fray in Miscellaneous Application No.1 of 2004. The Division
Bench has taken care of that matter. In paragraph 9 of its order, the Division Bench has
expressed and in our opinion, very rightly that by mere grant of certified copies, it cannot
be construed that respondent no.1 has a right to participate in the perjury application. The
Division Bench has already directed that the said application should be heard along with
the main suit.
The Division Bench has also very rightly expressed that ultimately it would be for the
learned Judge to decide the issue as to whether respondent no.1 can join the proceedings.
That question had been left open. Again the Division Bench has clarified that the issue
regarding the evidentiary value of papers and documents in the perjury proceedings was
kept to be agitated by both sides. At this juncture, however, the main suit itself stands
decided and the parties before us did not point out anything about Miscellaneous
Application No.1 of 2004 nor was it pointed out as to whether it was still pending or not.
But even if it is presumed that it is still pending, we make it clear that mere grant of
certified copies in favour of the respondent no.1 itself would not entitle her to take part in
the proceedings and confirm the action of the Division Bench of keeping that question
open. As far as the misuse is concerned, we only have to observe that in case of its
misuse, the court below would be fully free to deal with such complaint if made to it.

15. Since the respondent no.1 has not challenged the findings and the order regarding the
audio cassettes, it is not necessary for us to consider that aspect.
16. Lastly we must note that in her marathon arguments, the respondent no.1 spent every
ounce of her energy in pointing out to us that as to how the judgment of this Court in
Civil Appeal No.2455 of 2005 was wrong and how she was wronged against. In support
of her contentions she has relied upon the following decisions of this Court:

Maganlal Chhaganlal (P) Ltd. V. Municipal Corporation of Greater Bombay & Others
[(1974) 2 SCC 402];

ii) Msr. Maneka Gandhi v. Union of India & Anr. [(1978) 1 SCC 248];

iii) Bishnu Deo Shaw v. State of West Bengal [(1979) 3 SCC 714];

iv) D.P. Chahda v. Triyugi Narain Mishra & Others [AIR 2001 SC 457];

v) Harish Chandra Tiwari v. Baiju [AIR 2002 SC 548];

vi) Shri Umed v. Raj Singh & Ors [(1975) 1 SCC 76];

vii) Dhananjay Sharma v. State of Haryana [AIR 1995 SC 1795];

viii) Ashwani Kumar Sharma v. Yaduvansh Singh & Ors. [AIR 1998 SC 337].

17. We have carefully seen all these cases. The cases at Serial Nos.