History 1. Manu Neethi Chozhan a unique character has become historical and now monumental in the High Court Campus for his instant justice in an accident case of fatality and the deceased was not a human being but a calf and the Claimant of course was a cow. BEFORE THE DISCIPLINARY COMMITTEE – I OF THE BAR COUNCIL OF TAMIL NADU AND PUDUCHERRY, CHENNAI Thiru R.SINGARAVELAN, Chairman Thiru S.ILAMVALUTHI, Member Thiru RAVI SHANMUGAM, Member Dated 27th day of February 2019 D.C.C.No. 479 of 2018 The Registrar (Judicial) High Court, Chennai
BEFORE THE DISCIPLINARY COMMITTEE – I OF THE BAR
COUNCIL OF TAMIL NADU AND PUDUCHERRY, CHENNAI
Thiru R.SINGARAVELAN, Chairman Thiru S.ILAMVALUTHI, Member
Thiru RAVI SHANMUGAM, Member
Dated 27th day of February 2019 D.C.C.No. 479 of 2018
The Registrar (Judicial) High Court,
Chennai 
1. Mr.A.Raveendran,
2. Mr.A.Jeyakumar,
3. Mr.M.Murugan, -Vs- …Complainant
Advocates, Chennai …Respondents
I. History
1. Manu Neethi Chozhan a unique character has become historical and now monumental in the High Court Campus for his instant justice in an accident case of fatality and the deceased was not a human being but a calf and the Claimant of course was a cow.
2. Years rolled on and disappeared in the wind with a remarkable speed. The stony civilization is now on digital civilization and the computers work, think and act for us. The world is on the satellites and we shape our lives to the command received by us from the satellites.
3. As the entire human life is shaped of, by and for the machines people have become mechanical and the respect and concern for other human beings whoever they may be have become the rarest quality.
4. People in the race with the computers and cellphones become easy victims to the road accident as though the humans are on the satellites, the lands in which they are living remain unchanged of course with changing nature of their usage.
5. One of such accidents is the subject matter of this disciplinary case as the very identity of the vehicle involved in the accident itself unconnected with the accident being the brain work of the respondents 1 to 3 and the police through CW 2 unlike chariot of the prince of Manu Needhi Chozhan. Apart from the vehicle another seriousness of the case is that there are three claim petitions for the very same accident by three advocates for the very same claimants. On taking judicial note of the same His Lordship the Hon’ble Justice Mr.P.N.Prakash got aback as a cow sought justice not only before one ruler of justice but before three rulers in three different places and hence he took much pain to find out the truth and has referred the matter to the Bar Council as the fault is not on the cow but on its legal advisors. Thus, the disciplinary case against the Respondents 1 to 3 is before us.
II. PRELUDE:-
6. At para 51 of the timely needed, thought provoking and public interest oriented judgment of the Hon’ble High Court of Madras in Crl.O.P.No.5922 of 2018 dated 19.07.2018 His Lordship has observed as follows:-
“51. The Bar Council of Tamil Nadu and Puducherry shall initiate disciplinary action against three advocates, viz., Murugan, Jeyakumar and Raveendran for professional misconduct in terms of
what is stated above.”
7. As per the above quoted orders of the Hon’ble High Court the matter was referred to the Disciplinary Committee No.1 straightaway on 28.11.2018 and on the basis of the said decision taken by the Special Committee referring the matter to the Disciplinary Committee No.1 notice was served on the Respondents asking them to appear before this Committee to face the disciplinary action initiated against them as per the order of the Hon’ble High Court of Madras.
III. APPEARANCE OF THE PARTIES AND THEIR STATUS:-
8. All the three advocates namely M. Murugan, `A. Jeyakumar, A.Raveendran appeared before this Committee along with their counsels. Thiru M.Murugan R3 was represented by his counsel S.Sivakumar and J.Ravikumar, R1 Mr.A.Raveendran was represented by his counsels M/s.M.Malar and A.Subadra and R2 Mr.A.Jeyakumar was represented by his counsel Mr.A.G.F Terry Chella Raja. The complainant was represented by the learned Senior Advocate Mr. C.T. Mohan.
9. The Learned counsel Mr.S.Sivakumar at first started defending the case for his client namely Thiru M.Murugan followed by the Learned Senior Counsel S.Subbiah who has argued and defended the case on behalf of the Respondents 1 and 2.
10. We should not omit to express our gratitude to the above senior counsel and other counsels who appeared and argued before us for the complainant and Respondents 1 to 3 as without their cooperation we would not have had an occasion to deliver this judgment within three months from the date of reference to us on the basis of the order to the Hon’ble High Court of Madras.
FACTS:-
11. A cursory glance at the order passed by His Lordship the Hon’ble Justice Mr.P.N.Prakash in Crl.O.P.No. 5922 of 2018 dated 19.07.2018 would clearly reveal the pathetic position of the poor litigants in the Motor Accident Claims cases and seriousness of the same can be shortened and said in a single sentence that at least half of those cases are filed by the advocates without even seeing the claimants and with the false vehicle number as per the instructions of the touts, nay, law brokers claiming for a huge amount of compensation with the help of police officials and the hospital workers and giving pittance to the victims.
12. All the three advocates who are Respondents before us are poor victims to such a tout as they out and out acted as per the instructions of the tout CW 2 before us who claims to have studied upto 8th standard only even according to his own admission.
13. CW 2, Thiru S. Stephen, son of Selvaraj is neither an advocate clerk nor even completed his school studies. It is claimed by all the three Respondents before us that it is as per the instructions of Thiru S.Stephen they filed blindly Motor Accident Claims Cases on behalf of unknown clients namely Tmt. M.Sasikala, wife of Late Mohan, Thiru M.Kapilraj, son of Late Mohan and Thiru M.Rajasekar, son of Late Mohan in respect of a single accident taking the life of one Mohan, husband of R1 and the father of R2 and R3 claiming for a huge compensation amount as mentioned below:
“(i). M.C.O.P.No.2730 of 2017 before the II Court of Small Causes, Chennai, for a claim of Rs.42,35,000/- filed through Mr.Murugan, Advocate, on 02.06.2017.
(ii). M.C.O.P.No.4614 of 2017 before the II Court of Small Causes, Chennai, for a claim of Rs.50,00,000/- filed through
M/s.A.Raveendran and N.M.Arunachalam, Advocates, filed on 01.08.2017.
(iii). M.C.O.P.No.45 of 2017 before the Motor Accident Claims Tribunal at Tiruvallur filed through Mr.A.Jeyakumar for a claim of Rs.65 lakhs but restricted to Rs35 lakhs filed on 06.04.2017.”
14. In all the above 3 cases as already stated the advocate for the claimants alone is different and the claimants and the Respondent and the cause of action are one and the same. The basis for the reference to the Bar Council for disciplinary action that is 3 cases by 3 advocates for a single accident involving unconnected vehicle has caused a mental turmoil to us which constrains us to deal with the problem elaborately and came out with preventive measures to save the innocent victims from the greedy professionals.
15. It is interesting to note that not only the filing of three claim petitions for the single accident is a matter before us, but also the involvement of a vehicle not involved in the accident in the claim petitions filed by the Respondents 1 to 3 is also a matter before us for consideration.
IV ARGUMENTS OF THE PARTIES:-
A. MAINTAINABILITY:-
16. The learned Counsel Thiru S.Sivakumar commenced his arguments for R3 questioning the very maintainability of the complaint before us.
17. His contentions are twofold, namely that there was no show cause notice issued by the Bar Council of Tamil Nadu and Puducherry calling for his client’s explanation to the complaint undertaken by it as per the order of the Hon’ble High Court and the failure to call for his client’s explanation before referring the matter to the Disciplinary Committee is violative of Section 35(1) of the Advocates Act, 1961 read with Rule 2 of Part VII, Chapter I of the Bar Council of India Rules under the caption of Disciplinary Proceedings and Review Rules framed under 49 (1)(f) of the Advocates Act, 1961.
18. Secondly, there should be a complaint from the affected parties against his client so as to bring him within the mischief under section 35(1) of the Advocates Act, 1961 and in the absence of such a complaint, no complaint can be referred to the disciplinary Committee solely on the basis of the direction given by the Hon’ble High Court of Madras.
19. The Learned Senior Counsel Mr.S.Subbiah who argued on behalf of the Respondents 1 and 2 also have raised similar objections to the maintainability of the complaint before us and hence it is our duty to deal with the same and then proceed with the matter on merits. Thiru.C.T.Mohan, Learned Senior Advocate pointed out that such a reference is unavailable in view of the order of the High Court.
20. As their arguments were based on Section 35(1) and Rule 2 of the Rules for disciplinary proceedings and review under Part VII Chapter I they are reproduced below for the convenience of all the parties concerned.
(i) Section 35(1) of the Advocates Act, 1961:-
“(1) Where on receipt of a complaint or otherwise a State Bar
Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.”
(ii) PART VII
DISCIPLINARY PROCEEDINGS AND REVIEW
CHAPTER I
Complaints against Advocates and Procedure to be followed by
Disciplinary Committees of the State Bar Council and the Bar
Council of India
[Rules under section 49(1) (f) of The Act]
“1 …………………”
“2. Before referring a complaint under section 35(1) of the Act to one of its Disciplinary Committees to be specified by it, the Bar Council may require a Complainant to furnish within a time to be fixed by it, further and better particulars and may also call for the comments from the advocates complained against.”
21. The Learned Counsel and the Learned Senior Counsel mainly based their arguments on the above quoted Rule 2 and contended before us that before referring the complaint to one of the Disciplinary Committees of the Bar Council of Tamil Nadu and Puducherry it is the duty of the Bar Council to require a Complainant to furnish within a time to be fixed by it further and better particulars and also call for the comments from the advocates complained against. They have contended vehemently that in this case straightaway the matter was referred to the
Disciplinary Committee No.I before even calling for the comments of the Respondents 1 to 3 and thus Rule 2 of the above Rules is violated.
22. A cursory glance at Section 35(1) of the Advocates Act, 1961 would clearly reveal that there is no such duty cast upon the Bar Council to invite the comments from the concerned advocate against whom the complaint is made. What all Section 35(1) has prescribed is that the State Bar Council on receipt of a complaint has to mandatorily refer the case for disposal to its Disciplinary Committee when it has reason to believe that any advocate on its roll has been guilty of professional or other misconduct. Thus, the State Bar Council is not statutorily bound to hear the advocate before referring the complaint to one of its Disciplinary Committees when prima facie the complaint has satisfied the element of professional misconduct or other misconduct against the advocate concerned.
B. HARMONIOUS CONSTRUCTION:-
23. Section 35(1) does convey a clear message that on receipt of the complaint it has to be referred to the Disciplinary Committee if the State Bar Council has a reason to believe that the advocate is guilty of professional or other misconduct and when Section 35(1) read with the above quoted Rule 2, has to be harmoniously interpreted to mean that the State Bar Council can call for the comments from the advocate concerned before referring the matter to the Disciplinary Committee only if it feels that such comments are necessary for taking a decision to refer the matter to anyone of its Disciplinary Committees.
24. That is the reason as to why the word used in Rule 2 providing for the comments from the advocate concerned is “may” and the word used in section 35(1) to refer the matter to the Disciplinary Committee is “shall”. When both the provisions are harmoniously considered and interpreted they would convey a clear meaning that when the Bar Council satisfies itself that there is a prima facie case made out in the complaint then it need not wait for the preliminary comments from the advocate concerned and it can straightaway refer the matter to the Disciplinary Committee and if it thinks that such comments are necessary on furnishing of certain additional particulars by the Complainant, then it can call for the comments from the advocate concerned also. Except the above meaning no other meaning can be attributed to the conjoint reading of both the provisions and if a different meaning is given it would defeat the very object of section 35(1) itself and damage the very construction of both the provisions. Any interpretation of the statutory provisions should be in consonance with the purpose for which the provisions are drafted and it should not be used to defeat the very object of the Act and the Rules.
C. IS PRELIMINARY NOTICE THE RIGHT?
25. Even assuming that Rule 2 above quoted mandates a preliminary notice to the advocate concerned, the question arisen for consideration is as to whether it has conferred any right on the advocate concerned to contend that their substantial right to defend is taken away.
26. First of all, the rules framed by the Bar Council of India have to be understood in the light of the statutory provisions of the parliament enactment called the Advocates Act, 1961 and therefore, Rule 2 has to be understood in the light of the words used in section 35(1) which are intended to avoid any delay after receiving the complaint to prefer the same to the Disciplinary Committee straightaway as there is a detailed procedure prescribed under Section 42 of the Advocates Act, 1961 giving more sufficient opportunity to the advocate complained of.
D. OPPORTUNITY BY THE HON’BLE HIGH COURT:-
27. Secondly, by not calling for the explanation before referring the complaint to the Disciplinary Committee in this case, the right of the Respondents 1 to 3 cannot be said to have been affected in any manner for the following two reasons, namely, (1) they were given full opportunity to place their contentions and defence before His Lordship the Hon’ble Mr.Justice P.N.Prakash at the time of hearing of the criminal original petition and only after hearing all of them, His Lordship was pleased to refer the matter to the Bar Council of Tamil Nadu and Puducherry for disciplinary action. Hence, they cannot be allowed to contend that their right is taken away by not providing the opportunity to them to submit their preliminary explanation.
28. It is to be immediately pointed out at this juncture that they not only orally defended themselves before the Hon’ble High Court but they were asked to file their own affidavit and accordingly they had filed their own affidavit before the Hon’ble High Court. His Lordship took pain to go through the entire affidavit and reproduce them in his judgment and then after analysation of the same, a direction was given to the Bar Council to take disciplinary action against the Respondents 1 to 3.
E. AFFIDAVIT FILED BEFORE THE HIGH COURT AND PRELIMINARY EXPLANATION:-
29. Secondly, in view of the affidavit filed before the Hon’ble High Court, the Respondents 1 to 3 would have had no chance to take a different view in their preliminary explanation even assuming that it was called for by the Bar Council and thus preliminary explanation would have been an empty formality.
30. A cursory glance at section 42 of the Advocates Act, 1961 would clearly prove that there is a detailed procedure prescribed to defend effectively in the case taken up on file by the Disciplinary Committee of the Bar Council of Tamil Nadu and Puducherry. In fact, the procedure prescribed under Section 42 is more or less akin to that of the procedure prescribed for the civil as well as the criminal courts.
31. As observed by the Hon’ble Apex Court that the advocate concerned has got a long way of defence under Section 42 and he can use the same to prove his innocence at the best. Section 42 does not prevent an advocate concerned from submitting his explanation to the complaint referred to it and also file any miscellaneous petition questioning the very maintainability of the complaint as questioned before us now. Hence, it cannot be allowed to be contended that by referring the matter straightaway to the Disciplinary Committee on the basis of the order of the Hon’ble High Court their right of defence is taken away when it is always open to them to take recourse through any of the methods prescribed under Section 42 of the Advocates Act, 1961.
F. NO PRELIMINARY NOTICE WHEN THERE IS AN ORDER OF THE HON’BLE HIGH COURT FOR DISCIPLINARY ACTION:-
32. That apart, a mere perusal of the direction given by the Hon’ble High Court of Madras at para 51 would clearly reveal that the Hon’ble High Court has mandatorily directed the bar council to initiate disciplinary action against the Respondents 1 to 3 and at the cost of repetition para 51 is again reproduced below again:
“51. The Bar Council of Tamil Nadu and Puducherry shall initiate disciplinary action against three advocates, viz., Murugan, Jeyakumar and Raveendran for professional misconduct in terms of what is stated above.”
33. The Respondents 1 to 3 are parties to the above quoted direction and such a direction was given as already observed by us on the basis of their own affidavit and submissions made on that affidavit. They are bound by the above quoted order and any attempt made by them to circumvent such a direction would amount to clear contempt of the order passed by the Hon’ble High Court of Madras and hence we have no hesitation to reject such an argument advanced by the Learned Senior Counsel for the Respondents 1 and 2 and the other learned counsel for the Respondent 3 that the complaint ought not have to have been referred to the Disciplinary Committee without calling for their preliminary explanation in view of the direction at para 51 of the High Court order.
G. PARA 51 OF THE HIGH COURT ORDER – BINDING NATURE – ANY ARGUMENT AGAINST IT IS MISCONDUCT:-
34. We hold that Para 51 of the order passed by the Hon’ble High Court of Madras binds all the parties concerned and also the Bar Council of Tamil Nadu and Puducherry and what is directed was to take disciplinary action and not to punish the advocates straightaway. The Respondents 1 to 3 should have taken such a direction in the right sense and they should not have even attempted to advance the argument that they should have been given opportunity before referring the matter for disciplinary action.
35. We hold unhesitatingly that such an argument of the Respondents 1 to 3 is against the order of the Hon’ble High Court and would even amount to misconduct within the meaning of the Section 35(1) of Advocates Act, 1961. However such an argument is taken for their defence, and hence we are not inclined to punish them on that count.
36. When para 51 of the order and section 35(1) of the Advocates Act, 1961 read with Rule 2 of the Disciplinary Proceedings Rules framed by the Bar Council of India empower a State Bar Council to refer the matter to any of its Disciplinary Committees on its satisfaction of the prima facie case, contemptuous contention of the Respondents 1 to 3 that the complaint is liable to be dismissed for not providing an opportunity to submit the preliminary explanation is out and out, unsustainable and consequently is rejected in limine.
37. As we answer the maintainability of the complaint against the Respondents 1 to 3 in the above manner, now we proceed to deal with the case on merits on framing of charge:
V. CHARGE
38. We do frame the following charge:-
“That without even seeing the claimants, you, the Respondents 1 to 3 have filed 3 MCOPs for the same accident by involving the vehicle not involved in the accident as per the instructions of the tout CW 2 and thus has committed professional misconduct.
VI. CONTENTIONS – EVIDENCES
39. The Respondents 1 to 3 have chosen to file an affidavit before us also and apart from their affidavit, they have not let themselves for oral evidence before this Committee. On behalf of the Respondents 1 and 2, two documents were marked namely the legal notice issued by the 2nd Respondent to the claimants in all the MCOPs which is marked as R1 and the FIR dated 02.05.2018 filed by the Sub Inspector of Police, District Crime Branch, Kancheepuram which is marked as R2.
A. Evidences:-
40. R1 was pressed into service to prove that he filed the claim petition as per the instructions of Mr.Stephen and he intimated the claimants that he would withdraw the case filed by him on their behalf as two other petitions for them were filed without his knowledge for the same cause.
41. Apart from R1 and R2, FIR No.59 of 2017 of Somangalam dated 14.02.2017 also is filed before us and it is marked as C1. The said complaint is given by the son of the deceased Mohan and it was given to the police requesting them to find out the unidentified vehicle which is the cause for his father’s death.
42. This was marked by the Claimant before this Court and it is taken up on file as C1. The affidavit of S.Stephen is marked as C2. Apart from the above documents R1, R2 and C1, two witnesses let in oral evidence before us and those two witnesses were produced before us by the CBCID police at our instance as they are the root cause for the order of the Hon’ble High Court and this complaint before us.
B. CW 1 – Kapilraj – Committee Summoned:-
43. One is CW1 namely Thiru Kapilraj, son of the deceased. We wanted him to appear before us to find out the truth as to whether he met any of the three advocates and gave instructions to them to file Motor Accident Claims Case on his behalf. Further, we were interested in knowing the reason for the complaint given by him when all the three cases were filed for compensation in his favour.
C. CW 2 – Tout – Police Broker for Accident Cases- Committee Summoned:-
44. CW2 S.Stephen is the kingpin of the entire events and it is he who is responsible for the three accident claim cases filed by all the three Respondents before different courts in respect of the same accident for the same claimants and hence we felt that his presence also is unavoidable.
45. In response to our order, those two witnesses were produced because of the serious efforts taken by Thiru C.T.Mohan the Learned Advocate representing the Complainant before us.
D. Evidence of CW 1:-
46. CW1 Thiru Kapilraj son of the deceased Mohan has unhesitatingly and fearlessly deposed before us that he had not seen any of the three advocates and the signature found in the claim petition in
M.C.O.P.No.2730 of 2017 was his signature and it was obtained by Thiru S.Stephen CW2 in the petition and vakalat with lot of blanks falsely claiming that he was Advocate Omprakash. When he questioned CW2 for the blanks, CW2 is said to have told him that it would be filled later. It is his case that the person who got the signature from him had introduced himself as Suriyaprakash Advocate and he was not made known that it was Stephen who is CW2 before us. He also has deposed that the particulars at paras 11a, 12, 13 to 16a, 21, 23 and 23a were not furnished by him to the person claimed himself as Suriyaprakash Advocate. He believed that CW2 was Suriyaprakash as he had shown the visiting card of advocate Suriyaprakash. He has further said that whatever he said was noted in a white paper and the above columns in the claim petition were not even filled with any statement at the time of his signature. He has further deposed that he signed with blanks believing the words of CW2 that he was advocate Suriyaprakash. He has categorically said before this Committee that he gave a complaint only in respect of an unidentified vehicle as evidenced from C1 and he does not want any compensation from any insurance company for the vehicle which has not involved in the accident. He deposed that such an amount of compensation by involving a vehicle which had not involved in the accident is not to be taken by him as he does not want to earn any money on false claim. He has identified CW 2 present in the Hall that it is he who introduced himself as Suryaprakash and got his signature.
E. Cross of CW 1:-
47. On behalf of R1 and R2 cross examination was done by the Learned Senior Counsel Thiru S.Subbiah and he had shown the legal notice issued by R2 with acknowledgement and asked the witness whether the signature M.Sasikala found in R2 in the addressee column was the signature put by his mother. The witness replied that it was his mother’s signature and added further that the said notice was typed in English and his mother is not aware of even ABC of English.
48. On behalf of R3, his counsel cross examined CW1. FIR No. 1 of 2018 was shown to him and he was questioned as to whether this is the FIR given by him in 2018. He has admitted the same and the said FIR is marked as R2. He has denied the suggestion given on behalf of R3 that he has signed only in the duly filled in claim petition. In his re-examination, he has deposed that C 1 was given to find out the vehicle which had actually involved in the accident. Cw2 – S. Stephen:-
49. Thiru S.Stephen was watching the entire proceedings taken place before us and he was produced by the CBCID police as CW2. He deposed before this committee that he was the advocate clerk under Thiru Suriyaprakash and after sometime, due to his ill health he left him. He studied upto 8th standard and he deposed before this Committee that he got the signature of the claimants only in the duly typed statement. He has admitted that he has filed an affidavit on 27.06.2018 before High Court. He has also admitted that it is he who gave the claim cases to all the three advocates. He has further deposed that the police after the accident used to call him and entrust the cases to him with the vehicle number and he used to engage the advocate of his choice. The same is said in his affidavit filed before the High Court also.
50. With this above background of facts and evidences, we now proceed to consider the scope of the complaint against the Respondents 1 to 3 before us.
VII. DISCUSSION ON THE ARGUMENTS ON MERTIS OF THE CASE:-
A. Argument of R 3:-
51. It is admitted by all the three advocates that through CW2 only they got the instructions to file the claim cases and filed the same without even seeing the claimants. On behalf of Respondent No.3 an argument was advanced that CW1 has admitted the signature found in the claim petition filed by him and hence it is presumable that he has not committed any professional misconduct by making any false statement. He has argued further that the claimants signed the claim petition only after taking note of the particulars provided therein and they cannot now say that they put the signature in the petition with lot of blanks. However, he has admitted that the claimants did not sign before Respondent No.3 and instructions were given only to CW2 and not to him. Though it is his case that he simply acted as per the instructions of CW2 it is the case of R3 he drafted the claim petition only with the knowledge of the claimants as the claimants put their signature in the claim petition and hence there is no mistake on his part.
B. Argument of R 1 and R 2:-
52. R1 and R2 have contended before us that they are innocent and they also had filed the claim petitions only as per the instructions of CW2 and if at all anyone is to be blamed it is CW2 who is to be blamed and not them. Thus, the only advantage and differentiation R3 has got in this case is the admitted signature of the claimants in the claim petition filed by R3. But that loses its significance when CW1 who appeared before this Committee had categorically deposed that only with lot of blanks their signature was obtained by CW2 who falsely claimed to be Suriyaprakash Advocate. Such a categorical evidence given by CW1 before this Committee cannot be thwarted by R1 to R3 and CW1 was so firm and stable. As his oral evidence cannot be shaken in the cross and by any other evidences there is no reason for us to reject the evidence of CW1.
C. Consideration of Arguments:-
53. From the beginning it is the stand of CW1, son of the deceased Mohan, one of the claimants that his father dashed against an unidentified vehicle parked without parking lights. In no place, he has admitted that he had given the vehicle number. In the absence of him furnishing the vehicle number, the source of the vehicle number given in all the three claim petitions is not made known either before us or before the Hon’ble High Court. The oral evidence of CW2 and his behavior before this Committee are quite shocking. CW2 has claimed boldly before this Committee that he studied only upto 8th standard and he was the advocate clerk of Thiru Suriyaprakash for some time. He has admitted that it is he who instructed all the Respondents to file MCOP cases.
D. AFFIDAVIT OF S. STEPHEN – TOUT – BEFORE THE HIGH COURT:-
54. The affidavit filed by him before the Hon’ble High Court would clearly depict the picture of the nature and manner of Motor Accident Claims Cases filed before the courts in this State. His averments at paras
1 and 2 of the affidavit filed before the Hon’ble High Court in the Criminal Original Petition are not only clinching but also shocking to the conscience of any common man and hence they are reproduced below:
“1. I humbly submit that I am working as a Clerk in Mr.Suriyaprakash, Advocate Office from the year 2014. I unable go to job due to I am suffer jaundice in the year 2016, and my regular work is received phone calls from Police Station about accident case, the concern police officials gave all the details about met an victim person, thereafter, I met the accident person at hospital and gave state about accident and collect address proof and identity proof from the victim, thereafter the victim was discharged from the hospital while I collect all the hospitalization bills from the victim and get signature in vakalat, the said job was doing by me for the past one year.”
55. Para 2 of his affidavit is also relevant as it has revealed the role of the police officials in the Motor Accident Claims Cases for one or other reason best known to them and hence it is also reproduced below:
“2. I humbly submit that meanwhile one Poovarasan, Sub Inspector, Somangalam Police Station call to me and gave information that one Mohan, deceased due to accident the same was informed to me and given deceased details to said person, and the same was informed the victim the said person came to your house and he was conducting the case and gave phone number to victim the same was told to me as per the information I am following the matter and collect all the details about accident and give a victim phone number, as per the instruction of Poovarasasn, S.I. I make call to the deceased wife and she advice to come to house, thereafter I went to deceased’s house and collect get signature in the vakalat and collect photo and copy aadhar card from the deceased’s wife and deceased’s son. Thereafter I made call to said Poovarasan S.I. and state that I have complete the all formalities, thereafter I request to issue accident records, he state that come tomorrow and collect the same, then I went tomorrow collect the accident reports and paid advance amount and remaining amount after some time.”
56. CW2 before us has admitted the filing of such an affidavit before the Hon’ble High Court and thus the said affidavit is marked as C2 and the said affidavit itself is sufficient to hold that the Respondents 1 to 3 in collusion with CW2 have filed false claim cases before the courts by mentioning the wrong vehicle number as the said vehicle had involved in the accident. Further, all the three advocates admittedly had neither met the claimants nor got instructions from them to file claim petitions. R3 went one step further and got the petition typed through CW2 who studied only upto 8th standard and got the signature of the claimants through him in the unfilled claim petitions.
E. VIOLATION OF BAR COUNCIL OF INDIA RULES:-
57. As they were very casual and careless in filing the petition it is our duty to remind them the Bar Council of India Rules. Rule 19 of Section 2 of Chapter II of Part VI of Bar Council of India Rules mandatorily says as follows:
(i) Duty to his Client:-
“19. An advocate shall not act on the instructions of any person other than his client or his authorized agent.”
Again Rule 24 mandatorily says as follows:
“24. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.” Again Rule 14 of the same Rules mandates as follows:
“14. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.”
(ii) Duty to the Court:-
58. The above quoted rules under Section II of Chapter II of Part VI deal with the duty of an advocate to his client. Section I speaks about the advocate’s duty to the Court. Rule 4 under Section I reminds him of the following duty:
“4. An advocate should use his best efforts to restrain and prevent his client from resorting to sharp and unfair practices from doing anything in relation to the Court, opposing counsel or parties which the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings and using intemperate language during arguments in Court.”
(iii) Duty to his Colleagues:-
59. Rule 39 of Section IV which speaks about duty to colleagues and it runs as follows:
“39. An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent should not be produced and he shall appear only after obtaining the permission of the Court.”
F. Finding:-
Though the above rules speaks about the appearance in the same case, here R1, R 2 and R 3 filed fresh cases even when the case filed by other was pending. Thus, it is manifestly clear that all the three advocates R1 to R3 have thrown the Rules framed by the Bar Council of India and the confidence reposed by the courts on them to the wind and filed a claim case out and out as per the instructions of a tout who is CW2. Thus, we have no hesitation to hold that they have committed professional misconduct by filing claim petitions without even verifying the truth of the claim made by them on behalf of the alleged claimants and without even getting any instructions from them.
(i) CW 2’s Relationship with R1 to R3 – Misconduct:-
60. The Respondents have not let in any evidence to show before this forum that they were not aware of CW2 before and whereas it is their case that they are aware of CW2 even before. It is the admitted case of CW2 also that with the help of the police officials he used to get clue of the accidents taken place on the roads and get cases and engage the advocates as per his choice. The Respondents 1 to 3 are clearly aware of the above fact and they were also aware that CW2 is an uneducated tout. Otherwise, there was no chance at all to act as per CW2’s instructions and file cases.
(ii) Misconduct – Filing of Petition without even seeing the clients and their instructions:-
61. The very filing of cases by the Respondents 1 to 3 as per the instructions of CW2 would sufficiently prove that they are closely aware of the activities of CW2 and it is unfortunate to note that they have filed cases as per his instructions just for money. The very filing of cases as per the instructions of CW2 itself is a professional misconduct and the Respondents are liable to be punished on that count also.
62. Above all, the son of the deceased who appeared before us has clearly deposed that when he gave a complaint in respect of the unidentified vehicle which caused the death of his father, the Respondents 1 to 3 have mentioned the number and nature of the vehicle also in the claim petition and CW1 expressed surprise over the same. Thus, without even verifying the actual involvement of the real vehicle in the accident, the Respondents 1 to 3 had filed claim petitions for their unknown clients.
VIII. Conclusion:-
63. We have no hesitation to hold that their act of filing the petition without even finding out the actual vehicle involved in the accident as per the instructions of an uneducated tout is nothing but a fraud played not only on the Court but also on the public. They cannot be allowed to escape very lightly by holding that it is because of CW2 they have filed the claim cases for the unknown claimants and they are innocent otherwise. When they choose to file the accident claim petitions without even noting the identity and the knowledge of the claimants, it is not known as to how they would help the disbursement of the claim amount in proportion fixed by the Court to the claimants. Thus, we hold that the Respondents 1 to 3 have committed a grave professional misconduct and are liable to be punished severely by this forum which alone would deter other advocates from resorting to this type of filing claim petitions in collusion with the police officials and the hospital workers.
(i) Preamble:-
64. At this juncture, we want to reproduce the Preamble of Chapter II of the Bar Council of India Rules which is expected to be followed by all the advocates
Preamble of Chapter II
An advocate shall, at all times, comfort himself in a manner befitting the status as an officer of the Court, a privilege member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the forgoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned.”
(ii) Full Bench of AP High Court:-
65. We also want to quote the words of the Hon’ble Full Bench of Andhra Pradesh High Court in the matter of Mahboob Ali Khan at para 12 for our guidance.
“The practice, extent and measure of such duty and the circumstances in which the breach would constitute misconduct are different questions. No hard and fast rule can be laid down and it depends on the circumstances of each case. As is stated above the duties of the advocate are two fold. The advocate by his obligation is bound to discharge his duties to his client with the strictest fidelity and is answerable to the disciplinary jurisdiction of the Court for dereliction of duty. The relation involves the highest personal trust and confidence so much so that it cannot be delegated without consent. A pleader is more than a mere agent or servant of his client. He is also an officer of the Court and as such he owes the duty of good faith and honourable dealing with the Court before which he practices his profession.” (iii) (1979) 1 SCC 308
66. The Hon’ble Apex Court in V.C.Rangadurai Vs.D.Gopalan and Ors. reported in 1979(1) SCC 308 as follows:
“5. Law’s nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community. Indeed, the monopoly conferred on the legal profession by Parliament is coupled with a responsibility – a responsibility towards the people, especially the poor. Viewed from this angle, every delinquent who deceives his common client deserves to be frowned upon. This approach makes it a reproach to reduce the punishment, as pleaded by the Learned Counsel for the Appellant.”
iv. (1994) 2 SCC 204 – para 15
67. Again the Hon’ble Apex Court in State Of UP vs. UP State Law Officers Assn reported in 1994(2) SCC 204 at para 15 has observed as follows:
“15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the Court every act or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer’s discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the Court and an important adjunct of the administration of justice, the lawyer also owes a duty to the Court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.”
v. AIR 2000 Delhi 266
68. In B.L.Wadehra Vs. State (NCT of Delhi) para – 17, reported in AIR 2000 Delhi 266 the Hon’ble Delhi High Court has observed as follows:
“A lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. Members of the legal procession have certain social obligations also and the practice of law has a public utility flavor. According to the Bar Council of India Rules, 1975, ‘an advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is to a member of the Bar (or) for a member of the Bar in his non-processional capacity, may still be improper for an advocate’”
69. Apart from the above judgments, the following judgments are also to be quoted for the purpose of this case to remind all the advocates of their duties to themselves, to the society and to the courts and hence they are reproduced below one by one.
(vi) (1995) 3 SCC 619
In Ministry of Information and Broadcasting, In re reported in (1995) 3 SCC the Hon’ble A ؙpex Court has held as follows:
“The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior.”
The Court further stated:
“20. ………… If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practice the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside.”
vii. (2010) 14 SCC 114
22. In Sudha Case reported in (2010) 14 sCC 114, the Hon’ble
Apex Court has held as follows:-
“40. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as an intelligent citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life”
viii. (2017) 5 SCC 465
“24. In Ajitsinh Arjunsunh Gohil Vs Bar Council of Gujarat and another reported in (2017) 5 SCC 465 has held as follows:-
39. We have a purpose in referring to the aforesaid pronouncements. A lawyer is treated as a part of the noble profession and expected as an elite member of the society, to be professionally responsible and constantly remind himself of the society, to be professionally responsible and constantly remind himself that his services are rendered to the consumers of justice. As has been held in Pandurang Dattatraya –Vs- Bar Council of Maharashtra, an advocate stands I a loco parentis towards the litigants. He has a paramount duty to his client and client is entitled to receive disinterested, sincere honest treatment.”
ix. (2018) 8 SCC 321
70. In the latest case, called Union of India Vs. Moolchand
Kharaiti Ram Trust, the Hon’ble Apex Court declared that the legal and medical professions do stand on a different pedestal and they are meant for public service int he following words.
“55. The medical and legal professions stand on a different pedestal in the matter of fulfilling the obligations towards he society. They are not meant to be for commercial activity which by and large has become a bitter reality of the day. “Free treatment” to economically weaker sections is a normal obligation by very nature of charity, and it was also contended on behalf of the hospitals that the medical treatment itself is regarded as charitable one. The question arises when medical profession is charitable, what meaning is to be given to charity and whether by virtue of commercial gains only by giving treatment, it would still retain charitable character in its true meaning. Charity in common parlance is a relief to the poor and needy.
56. What may be proper for others in the society, may still be improper for members of the legal profession. The same ethical standard applies with equal force to the medical profession. Medical profession deals with the life of human beings. There has to be a balancing of human rights with the commercial gains.”
IX. Judgement:-
71. When we approach the case in hand from the angle of the above decisions and the Bar Council of India rules quoted above, we have no other option except to hold that the Respondents 1 to 3 have just taken the legal profession very lightly and played not only with the interest of the clients but also the dignity of the courts and the nobility of the legal profession. We therefore hold that they are liable to be awarded with the major punishment.
72. But at the same time we have to remind ourselves that this is because of over enthusiasm of getting more cases and earning more money to become rich quickly in the society and attain status they have misconducted themselves in the above manner.
73. In the race of earning money and false status, they have committed the above grave professional misconduct. We could have avoided giving the punishment had they not filed the claim petitions by mentioning the vehicle actually involved in the accident and sought for fair and just compensation. But they have filed the claim petition by mentioning the wrong vehicle number and claimed for disproportionate and huge claim of compensation for the unknown victims.
74. All the above facts have created a clear doubt in our mind that they would have done this with a motive to enrich themselves by cheating not only the claimants but also the courts. Hence, though they deserve the major punishment of permanent removal from the roll of Bar Council of Tamil Nadu and Puducherry we are inclined to award the punishment of suspension of practice for a period of 5 years from the date of receipt of a copy of this order and the Respondents are directed to surrender their original enrolment certificate and identity card to the Secretary of Bar Council of Tamil Nadu and Puducherry within 3 weeks from the date of receipt of this order. However, in case of payment of Rs.3 lakhs by each of the Respondents R1 to R3 to the claimants the punishment of 5 years suspension of practice will get reduced to 1 year. We hope that this type of punishment alone would deter the advocates who take their profession lightly for earning money alone at the cost of integrity and nobility of profession.
75. We feel that our duty is not over by punishing the wrong doers alone and we have to give some solid suggestions to the framers of law to pass necessary orders to see that the victims of cruel accidents on the roads should not be subjected to further cruelty in the name of inordinate delay in the Court corridors and fall a prey to the greedy professionals of law and medicine and also the police.
76. Mostly the accidents caused by the unidentified vehicles are the money trees for the above three classes of people driving the claimants to the bargaining state of affairs with the advocates, hospital workers and the police as their entitlement to nothing would fetch something for them with the crooked brain of the above three classes of people. By bearing the same in our mind we pass the following order:
X. Orders:- To sum up,
(i) That the preliminary objection of the Respondents 1 to 3 that the reference of the complaint to the Disciplinary Committee straightaway without even calling for the preliminary explanation is against the Rule 2 of the Bar Council of India Rules under Chapter VII is liable to be rejected in view of Section 35(1) and 42 of Advocates Act, 1961 and also the specific directions given by the Hon’ble High Court at para 51 of the order Crl.O.P.No.5922 of 2018 dated 19.07.2018 and accordingly is rejected.
(ii) That the argument of the Respondents 1 to 3 that the matter should not have been referred to the Disciplinary Committee in spite of the specific order of the Hon’ble High Court at para 51 in Crl.O.P.No.5922 of 2018 dated 19.07.2018 is nothing but contemptuous and consequently amounts to misconduct with the mischief of Section 35(1) of the Advocates Act, 1961.
(iii) That the Respondents 1 to 3 as per their own admission have filed three separate Motor Accident Claims petitions without even seeing the claimants and getting instructions from them and the acted as per the direction of CW2, S.Stephen who had studied only upto 8th standard and is a tout.
(iv) That they have violated the Rules 14, 19, 24 and 39 of Section II of Chapter II of Part VI of Bar Council of India Rules.
(v) That they have mentioned the vehicle number which had not involved in the accident in their claim petitions and thus has misrepresented the facts to the Court.
(vi) That on coming to how the fact of 3 cases for the same claimants for the same accident, each of the Respondents 1 to 3 has withdrawn their appearance bring the claimants in lurch which also is a misconduct as per Rule 12 of Section II of Chapter II of the Bar Council of India Rules.
(vii) In view of our decision above, we impose the punishment of suspension of practice for 5 years against Respondents 1 to 3 though they all deserve the major punishment of removal. However, in case of the willingness of each of them to pay each Rs.3 lakhs to CW1 and his mother and brother within 3 weeks from the date of receipt of a copy of this order, the suspension order for 5 years will get modified automatically to 1 year on their report to the Secretary, Bar Council with the DD in favour of the claimants.
Suggestion for Preventive Measures:-
(viii) It is in the interest of all that all the accident cases should be investigated thoroughly by the concerned police in the presence of the Insurance Company Representatives and the representatives of the victims in case of death or victims themselves in case of injuries and the report should be submitted to the Tamil Nadu State Legal Aid Authority within two weeks from the date of accident with all the required documents.
(ix) The State Legal Aid Board Secretary on such report should call for all the parties and try to settle the matter by placing the same before the Lok Adalat who by following guidelines of the Hon’ble Apex Court and the Hon’ble Division Bench of the Madras High Court would fix and award the just and fair compensation.
(x) In case of failure to convince the parties for the just and fair compensation inspite of the best efforts of the Adalat, the Legal Aid Board Authority should refer the matter to the concerned Court within its jurisdiction with the report and the required Court fees can be collected from the claimants if they are sound and capable. Otherwise, the State Legal Aid Authority has to pay the Court fees and also expenses for the appearance of the Advocates which can be later collected from the claimants from the compensation amount.
(xi) If the parties are sound and capable of engaging the advocates of their choice, the State Legal Aid Authority has to give a copy of the report of the steps taken by them for settlement with documents to the parties to enable them to file the case before the concerned Court to enable the jurisdiction court to note the conduct of the parties and the history of the case.
(xii) At any cost, the compensation amount fixed by the Court either after contest or on compromise before the Court has to be paid to the concerned parties only through the State Legal Aid Authority on their satisfaction that they are the original claimants or the legal heirs of the deceased.
(xiii) In case of unidentified vehicle involved in the accident the State Government should take steps to convince the big Insurance Companies like LIC of India, etc. earning huge profit to their account to share the reasonable compensation amount amounting to the maximum of Rs.12 lakhs in case of fatality and other proportionate lower amount in case of other injuries according to the nature of injuries and pay the same to the affected parties through the State Legal Aid Authority.
(xiv) Even for the Government buses involved in the accident, compensation amount cannot be solely shifted to the Government and the Transport Corporation as it is to be noted that because of the financial instability and incapabilities the government buses are detained by the Court at the cost of the public interest. Hence, the Government has to take steps immediately with the profit oriented Nationalized Insurance Companies by collecting a small amount from the ticket charge collected from the passenger or otherwise towards insurance premium and in case of accident, the said amount can be used for the payment of the compensation.
(xv) By involving the State Legal Aid Board within whose jurisdiction the accident takes place, false claims, fake reports, more than one FIR for the same accident and the major sharing of the compensation amount by the professionals with the help of the police and the insurance agents can very will be reduced and the advocates will also get an opportunity to appear in cases through the Legal Aid Board. Ofcourse, the retired Judges also to their satisfaction will get a chance to serve and keep themselves active. Further, the burden of the courts will be reduced and the poor victims will get quick justice.
(xvi) The above suggestions are not exhaustive and they can even be moulded or added in a better way. But we are sure that if the above tasks are achieved successfully, then there will be no complaint in respect of the Motor Accident Claims cases and the victims will not face second accident with the professionals in the Courts which would cost their whole time and cause mental turmoil.
(xvii) a person can tolerate anything but not injustice that too in the court corridors and hence we hope that the concerned authorities in helm of affairs would take immediate steps to eliminate all possible evil eventualities which would injure the Motor Accident claimants mentally.
With the above directions, the Disciplinary case stands allowed.
There is no order as to costs.
Thiru. R. SINGARAVELAN,
Chairman
Thiru. S. ILAMVALUTHI, Thiru. RAVI SHANMUGAM,
Member Member
