Octobe1' 11.

SUPREME COURT REPORTS

ROHTAS INDUSTRIES LTD. v.

BRIJNANDAN PANDEY.

[1956]

[BHAGWATI, VENKATARAMA AYYAR, s. K. DAS and

GOYINDA MENON JJ.]

Industrial Disp,, te-Temporary employees-Discharge of work men-Application before the Labour Appellate Tribunal-Scope of enquiry-Discretion of the Tribunal-Ind•<Strial Disp,.tes (Appellate Tribunal) Act, 1950 (XL VIII of 1950), s. 22.

The scope of an enquiry under s. 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, is whether there is a prima facie case made out for the proposed discharge of the workman and the employer has not resorted to any unfair practice or victimisation.

Though an Industrial Tribunal can create new obligations or modify contracts in the interests of industrial peace or to prevent unfair practice or victimisation, its discretion bas to be exercised in accordance with well recognised principles and it cannot ignore altogether an existing agreement or existing obligations.

The AutomobileProditets of India Ltd. v. R"kmaji Bala ([1955] 1 S.C.R. 1241) and Atherton West it Co. Ltd. v. Suti Mill Mazdoor Union, ([1953] S.C.R. 780), relied on.

Where, as in the present case, the Labour Appellate Tribunal did not direct its mind to the real question to be decided on an ap plication under s. 22 of the Act for permission to discharge the temporary employees and witbout deciding whether the workmen were temporary employees or not, passed an order dismissing the application on the basis of a finding which was not determinative of the real point or question at issue, held that the decision must be set aside and the proper order passed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 144 of 1955.

Appeal by special leave from the judgment and order dated September 25, 1953, of the Labour Appellate Tribunal of India, Calcutta in Miscellaneous Case No. C-112 of 1953.

G. K.

Daphtary, Solicitor-General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant.

S. P. Sinha, R. Patnaik and A. D. Mathur, for

tl:e respondents.

1956. October 11. The Judgment of the Court was delivered by

S. K. DAS J.-This is an appeal by special leave from a decision of the Labour Appellate Tribunal, Calcutta, dated the 25th September, 1953.

The relevant facts lie within a narrow compass.

On the 4th of May 1953 the appellant, the Rohtas Industries Limited, Dalrnianagar, made an application to the said Labour Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), hereinafter referred to as the Act, for permission to discharge ninety six temporary employees in the following circumstances.

The appellant company have a number of factories at Dalmianagar including a cement factory, power house, pulp mill, paper factory, chemical factory, factory for the manufacture of certain acids and an asbestos cement factory.

The company had a number of temporary employees who were engaged temporarily in connection with certain erection works for the extension and enlargement of those factories.

The terms of employment of these employees were embodied in a temporary appointment form which was signed by the employees as well as the management.

The said terms stated, inter alia, that "the company could discharge the employee at any time without notice, compensation and giving any reason therefor, whether on completion of the work on which the employee was engaged or earlier"; the terms also made it clear that whether the employee was on the same job or some other job, in the same department or some other, either on temporary work or permanent work, he would remain a temporary employee until the Works Manager issued a written letter expressly making him a permanent employee. As and when the various erection works were completed, the temporary employees were first put on a list of spare men and then discharged.

Some time prior to the 3rd of July 1952, sixty nine of these temporary employees were spared for being discharged. The names of these sixty nine employees were given in two lists, Appendix

Rohtas Industries Ltd. v.

Brijnanda11

Pandey

1956 A and Appendix B. It was alleged that on the 3rd ot July 1952, a number of these employees headed by one Rohtas Industries Brij Nandan Pandey entered the office of Shri L. C.

Ltd.

Jain, Manager of the Cement Factory, and Brij Brifnandan Nandan Pandey assaulted the Manager.

A serious Pand•y situation resulted from that incident and the company stopped the sixty nine temporary employees s. K. DasJ. from coming to their factories or to their Labour ' Office and issued a notice to them stating that the company were applying to the Industrial Tribunal for permission to terminate their services.

At that time an industrial dispute relating to, among other things, the payment of bonus to the employees was pending adjudication in the Court of the Industrial Tribunal, Bihar. On the 5th of July l!l52, the appellant company made an application to the said Tribunal for permission to discharge the sixty nine employees. The application was made under section 33 of the Industrial Disputes Act, 1947.

On the 12th of July 1952, forty nine out of the said sixty rtine employees made an application, under section 33-A of the Indusrial Disputes Aot, to the Chairman, Industrial Tribunal, Bihar, on the allegation that the appellant company had discharged sixty nine employees on the 5th July 1952 and had thereby contravened section 33 of the Industrial Disputes Act,

1947. On the 20th of August 1952, thirty six more tempon, ry employees were put on the spare list and an application was made to the Industrial Tribunal Bihar, for including these thirty six persons also in the application which had been made for permission to discharge the temporary men; thus, all told, the application related to one hundred and five temporary men.

The case of the appellant company was that the completion of the erection works for which these temporary men were originally employed was a gradual process and so far as the Cement Factory erection work was concerned, it was completed by the end of March 1952 except for certain minor additions and alterations. Therefore, the appellant company no longer required the services of the temporary employees and they were put on the spare list as and

when their services were no longer required.

The two applications which had been made to the Industrial Tribunal, Bihar, the one under section 33 of the Industrial Disputes Act and the other under section 33-A of the said Act, remained pending with the Industrial Tribunal till the 17th of December 1952 on which date the application under section 33-A filed by forty nine of the sixty nine temporary employees, was dismissed. On the 3rd of January 1953, the Chairman of the Industrial Tribunal, Bihar, intimated to the appellant company that the Tribunal was no longer competent to pass any orders on the application under section 33 of the Industrial Disputes Act, 1947, as the adjudication proceedings on the main reference had already concluded. Two appeals were taken to the Labour Appellate Tribunal, one from the award made on the main adjudication and the other from the order made on the application under section 33-A of the Industrial Disputes Act,

1947. On the 20th May 1953, the appeal from the order under section 33-A was dismissed. As we are not concerned with that appeal in any way, nothing fu.rther need be said about it in this judgment.

The appeal from the main award was pending on the 4th of May 1953 on which date the appellant company made their application under section 22 of the Act to the Labour Appellate Tribunal for permission to discharge ninety six of the temporary employees. Though there were one hundred and five temporary employees originally, with regard to whom an application had been made to the Industrial Tribunal, Bihar, nine out of them voluntarily left the service of the company; therefore, the number of temporary employees regarding whom the application under section 22 of the Act was made was ninety six only.

The application was contested by forty two of the temporary employees, and in their affidavit they denied that any of the sixty nine workmen were originally recruited as temporary workmen and they further denied that they were involved in the incident relating to the assault on Shri L.C. Jain on the 3rd of July 1952. They said that in effect they were

Rohtas Industries Ltd. v.

Brijnandan

Pandey

S, K. Das}.

Rohtas Industries

Ltd. v.

Brijnandan

Pandey

S. K. DasJ,

permanent employees and enjoyed all the benefits of permanent employees. They further stated:

"The erection work of the cement plants of the petitioners was completed towards the end of 1950 and it is therefore patently false to suggest that we became redundant as a resultofthecompletion of the erection of the cement plants. It is significant to note that a large number of workmen who had worked on the job of erecting the cement plants were discharged shortly after the completion of the said work on the ground that they were surplus. The cement plants started to work in full swing from about the first quarter of 1951 and we were working in the said cement plant producing cement from the very beginning right up to 5th July 1952, when we were informed that we were surplus. In fact the real reason for the proposed retrenchment is the petitioner's desire to increase the rate of exploitation of its workmen by increasfog the workload".

With regard to the terms embodied in the appointment form, it was alleged that on or about the 3rd of December 1948 the employees of the appellant company were forced to go on strike on account of an industrial dispute; towards the end of the strike the workmen became exhausted and drifted back to work.

The strike was ultimately called off and the appellant company taking full advantage of their victory compelled a section of the workmen, who did not return to work until the strike was called off, to sign the appointment form with the purpose of humiliating and terrorising them.

The Labour Appellate Tribunal gave its decision on the 25th September 1953 which is the decision under appeal. It dismissed the application of the appellant company on a finding which the Tribunal expressed in the following words:

"It is thus clear that these 96 workmen had been working in the production departments from as far back as the beginning of the year 1951 and so the completion of the erection work cannot be put forward as the ground for their retrenchment".

Referring to the Directors' Report dated the 10th of July 1951, the Tribunal came to the conclusion that the workmen's version that the erection works had been completed by the end of 1950 was supported by the said report. In other words, the decision of the Labour.Appellate Tribunal was primarily based on the finding that the erection works were completed by the end of 1950 and therefore there was no ground foi' discharging the ninety six temporary men.

I Learned counsel for the appellant has contended before us that (1) the Appellate Tribunal did not cor- :i; ectly appreciate the true scope and effect of section 22 of the Act; (2) the Appellate Tribunal gave attention to only one point, namely, the completion of erection works, and did not consider the other circumstances put forward on behalf of the appellant in support of their application; (3) instead of considering the real point which arose for determination on an application under section 22 of the Act, the Appellate Tribunal confined its attention to a point which was not decisive of the question before it; and (4) by reason of its. failure to coneider the real point for determination, the order of the Appellate Tribunal has resulted in manifest injustice. In our opinion, these contentions are correct and should be upheld.

It was pointed out in The Automobile Products of India Ltd. v. Rukmaji Bala(1) that section 22 of the Act confers on the Appellate Tribunal a special jJJrisdiction which is in the nature of original jurisdiction and the Tribunal being an authority of limited jurisdiction must be confined to the exercise of such functions and powers as are actually conferred on it. "With regard to the scope of section 22 of the Act, it was observed: •

"The object of section 22 of the 1950 Act like that of section 33 of the 194 7 Act as amended is to protect the workmen concerned in disputes which form the subject-matter of pending proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the

(1) [1955] l S.C.R. 1241.

Rohtas Industries Ltd. v.

Brijnandan

Pandey

S. K. Das],

Rohtas Industries Ltd. v.

Brij'nandan

Pandey

S. K. Das].

pending proceedings. It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the jlmployer and the workmen. To achieve this object a ban bas been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment.

Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in 1tppropriate cases by the authority mentioned therein. The purpose of these two sections being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdictionunder these sections is to accord or withhold permission".

The earlier decision of this Court in Atherton We8t & Co. Ltd. v. Suti Mill Mazdoor Union(') dealt with clause 23 of the U. P. Government Notification dated the 10th March 1948 made in exercise of the powers conferred by sections 3 and 8 of the U. P. Industrial Disputes Act, 1947, and it was there observed that the scope of the enquiry was to Gome to a conclusion whether there was a primafacie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. That being the scope of the enquiry on an application under section 22 of the Act, what the Labour Appellate Tribunal had to decide in the present case was whether the appellant company had made out a prima facie case for the proposed discharge and whether tliey were resorting to any unfair practice or victimisation in the matter of the proposed discharge.

(1) [1953] S.C.B. 780.

Instead of doing that, the Labour Appellate Tribunal dismissed the application of the appellant company on the only ground that the version of the workmen that the erection works had been completed by the'end of 1950 was supported by the Report of the Directors dated the 10th July 1951. Learned counsel for the appellant has rightly pointed out that even in respect of the completion of erection works the conclusion of the Appellate Tribunal is a complete non sequitur. First of all, the Directors' Report was dated the 10th July 1951 though the balance-sheet of the company with which the report was dealing related to the period ending on the 31st October 1950.

The report naturally referred to such works as were completed on or before the 10th of July 1951. It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completion. Under their terms of employment, temporary employees could be moved from one work to the other and the mere circumstance that they were employed in a production department for so.me time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent. These are circumstances which have been completely ignored by the Labour Appellate Tribunal.

It is worthy of note that in their application dated the 12th of July 1952, the forty nine workmen admitted:

"though most of us were originally recruited for erection work in the Cement Factory, many of us were later on transferred as permanent workers to sugar and paper factories and some of us were absorbed as permanent workers in the maintenance section of the Cement Factory". (Vide paragraph 3 of the application).

In the joint affidavit filed on the 12th August, 1953, in reply to the appellant's application under section 22 of the Act, the said workmen denied however that

Rohtas Industries

Ud.

Brijnandan

Pandey

S. K. Das].

1956 they'were at any time engaged temporarily for tem- R ht str. porary work: vi de paragraphs 3 and 6 of the affidavit. 0

asu~." "' Obviously, they were shifting from the position which v. they had originally taken up. No evidence was given Br;; nandan that the men who were employed temporarily were Pandey afterwards made permanent. They filed a schedule, marked 'A', to their affidavit wherein they showed s. K. Das J. their period of service and the name of the factory or plant from where their duties stopped. On an examination of the schedule (Anne.xure A) it appears that a number of them were put 9n the spare list when the erection work was completed some time in

1952. Annexure 'A' therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952.

The first batch of sixty-nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant erection works were completed. The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above.

With regard to the terms of employment embodied in the temporary appointment form, the respondents' case was that the appointment forms were signed as a result of the strike in 1948; it was never suggested that these forms were never signed at all and the comment of learned counsel for the respondents that the appellant company have not produced the appointment forms has very little force.

The respondents gave no evidence in support of the allegation that the appointment forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding.

None of the affidavits filed on behalf of the respondents suggested, even in a remote way, that the appellant company were resorting to any unfair practice or victimisation in the matter of the proposed discharge.

Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether therespondents were temporary or permanent employees. He has argued that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us. We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works. Secondly, learned counsel for the respondents has contended that under section 22 of the Act the Appellate Tribunal bad a discretion, either to lift the ban or not to lift it and in a matter of disQretion this Court should not interfere. It is true that this Court does not sit upon the decisions of Industrial Tribunals like an ordinary Court of appeal, and thre must be special circumstances to justify the exercise of pur special power under article 136 of the Constitution.

In our opinion, such special circumstances exist in the present case where the Labour Appellate Tribunal has not directed its mind to the real question to be decided on an application under section 22 of the Act and has passed an order on the basis of a somewhat irrelevant'finding which has resulted in manifest injustice.

The discretion which an Industrial Tribunal has must be exercised in accordance with well recognised principles. There is undoubtedly a .distinction between commercial and industrial arbitration. As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining) Vol. I, page 536:

"Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements".

Rohtas Industries Ltd. v.

Brijnandan

Pandey

S. K. Das/.

Rohtas Ind1, stries

Ud.

Brijnandau

Pandey

S. /{, Das J.

A Court of law proceeds on the footing that no power exists in the courts to make contracts for people, and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever.

It has been necessary for us to go into the facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so.

The Act under which the Appellate Tribunal purported to pass its order has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. A question of some nicety as to the correct interpretation of section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 might have arisen if we had thought fit to remand this case.

We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-section (2) of section 33 of that Act.

No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under section 22 of the Act clearly emerge from those affidavits.

We are satisfied prima facie that the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed.

The appellant company have made out a prima facie case for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.

In these circumstances, we would allow the appeal, set aside the decision of the Labour Appellate Tribunal dated the 25th September 1953 and pass the order

which that Tribunal should have passed in this case, namely, that permission be granted to the appellant to discharge ninety six temporary workmen. In the circumstances of this case, we think that the parties must bear their own costs throughout.

Appeal allowed.

IN RE: SHRI 'M', AN ADVOCATE OF

THE SUPREME COURT OF INDIA.

[JAGANNADHADAS, VENKATARAMA AYYAR and

B. P. SINHA, JJ.]

Professional Misconduct-Appropriation by Advocate on record of Surpfos Paper Book Cost towards fees-Legality-Standard of professional conduct-Trustee-Lien-Procedure-Supreme Court

R1iles, 1950, (as amended), 0. IV, r .. 80.

Facts. Shri 'M', while an Agent of the Supreme Court, filed a. criminal appeal and later on became an Advocate on record under the. new rules of tl)e Court which came into force on January 26,

1954. He received a sum of Rs. 750 from his client for costs of printing of the Paper Book and deposited the same in the Punjab High Court from whose decision the appeal a.rose. There was 11 sur plus of Rs. ~J42-1-9 pies. He withdrew tbe amount without inform ing his client, made no demand of any fees a.s being due to him, did not lodge any bill for taxation and appropriated the sum towards his a.Ueged fses.

Tbe client came to know of the withdrawal from _. the Punjab High Court and when he confronted Shri 'M' with the letter from that court Shri 'M', who had denied the receipt of the surplus amount, could no longer do so and stated that he was en titled to a reasonable fee, had a lien therefor a.nd had appropriated the a.mount.

Held, that on the facts found the Advocate wa.s guilty of professional misconduct and must be suspended from practice.

The high standard of professional conduct contemplated by rule 30 of Order IV of the Supreme Court Rules virtually made a.n Advoca.te a. trustee for his•client in respect of a.11 his moneys which ca.me into his .hands except what was specifically ear-marked for fees.

Any lien which he might have under the .rules would not justify the appropriation of any such money towards his fees without the express or implied consent of the client or an order of Court.

Nor could a.n Advocate, in absence of a. prior settlement of fees, constitute himself a judge in his own ca.use a.nd determine what

Rohtas Industries

lid.

Brijnat1dan

Pandey

S. K. Das}.

October 17.

ROHTAS INDUSTRIES LTD

BRIJNANDAN PANDEY

BHAGWATI

s. K. DAS

GOYINDA MENON JJ.

s. 22

s. 22

[1955] 1 S.C.R. 1241

s. 22

G. K.

Daphtary

A. B. N. Sinha

B. P. Maheshwari

S. P. Sinha

R. Patnaik

A. D. Mathur

S. K. DAS

4th of May 1953

Rohtas Industries Limited, Dalrnianagar

section 22

Dalmianagar

3rd of July 1952

3rd ot July 1952

Brij Nandan Pandey

L. C.

Ltd.

Jain

Brij Brifnandan Nandan Pandey

K. DasJ.

Industrial Tribunal, Bihar

5th of July l!l52,

section 33

Industrial Disputes Act, 1947

12th of July 1952

section 33

section 33

Industrial Disputes Act

20th of August 1952

Industrial Tribunal Bihar

section 33

Industrial Disputes Act

section 33

17th of December 1952

section 33

3rd of January 1953

section 33

Industrial Disputes Act, 1947

section 33

Industrial Disputes Act

20th May 1953

section 33

section 22

section 22

L.C. Jain

S. K. DasJ

5th July 1952

3rd of December 1948

25th September 1953

10th of July 1951

section 22

section 22

section 22

section 22

section 22

section 33

Section 22

section 33

clause 23

10th March 1948

sections 3 and 8

Industrial Disputes Act, 1947

section 22

10th July 1951

31st October 1950

Labour Appellate Tribunal

12th August, 1953

section 22

Rohtas Industries

S. K. Das

s. K. Das

section 22

article 136

section 22

Ludwig Teller

S. K. Das/.

Das

section 33

section 33

section 22

SUPREME COURT OF INDIA

JAGANNADHADAS

B. P. SINHA

January 26,

1954

Punjab High Court

Order IV of the Supreme Court Rules

Rohtas Industries


S.C.R.

SUPREME COURT REPORTS Sll

which that Tribunal should have passed in this case, namely, that permission be granted to the appellant to discharge ninety six temporary workmen. In the circumstances of this case, we think that the parties must bear their own costs throughout.

Appeal allowed.

IN RE: SHRI 'M', AN ADVOCATE OF

THE SUPREME COURT OF INDIA.

[JAGANNADHADAS, VENKATARAMA AYYAR and

B. P. SINHA, JJ.]

Professional Misconduct-Appropriation by Advocate on record of Surpfos Paper Book Cost towards fees-Legality-Standard of professional conduct-Trustee-Lien-Procedure-Supreme Court

R1iles, 1950, (as amended), 0. IV, r .. 80.

Facts. Shri 'M', while an Agent of the Supreme Court, filed a. criminal appeal and later on became an Advocate on record under the. new rules of tl)e Court which came into force on January 26,

1954. He received a sum of Rs. 750 from his client for costs of printing of the Paper Book and deposited the same in the Punjab High Court from whose decision the appeal a.rose. There was 11 sur plus of Rs. ~J42-1-9 pies. He withdrew tbe amount without inform ing his client, made no demand of any fees a.s being due to him, did not lodge any bill for taxation and appropriated the sum towards his a.Ueged fses.

Tbe client came to know of the withdrawal from _. the Punjab High Court and when he confronted Shri 'M' with the letter from that court Shri 'M', who had denied the receipt of the surplus amount, could no longer do so and stated that he was en titled to a reasonable fee, had a lien therefor a.nd had appropriated the a.mount.

Held, that on the facts found the Advocate wa.s guilty of professional misconduct and must be suspended from practice.

The high standard of professional conduct contemplated by rule 30 of Order IV of the Supreme Court Rules virtually made a.n Advoca.te a. trustee for his•client in respect of a.11 his moneys which ca.me into his .hands except what was specifically ear-marked for fees.

Any lien which he might have under the .rules would not justify the appropriation of any such money towards his fees without the express or implied consent of the client or an order of Court.

Nor could a.n Advocate, in absence of a. prior settlement of fees, constitute himself a judge in his own ca.use a.nd determine what

Rohtas Industries

lid.

Brijnat1dan

Pandey

S. K. Das}.

October 17.

Jn re: Shri 'M', an

Ad'C10cate of th~ Supreme Court of India

would be reasonable fees payable to him. It might be that in certain circumstances he was entitled to exercise a. lien, but he had to give reasonoble intimation both of the fact of moneys having come into his hands and of the exercise of his lien over them until his account was settled.

The principle of trusteeship applied with greater force where the surplus money1 as in the instant ca.se, was meant for a. specific purpose, it being well settled that in respect• of such a money there could be no lien either under the common law or the statute.

That in a case such as the present, the standard applicable to an Agent under rules 31 and 32 of the old rules would be the same.

In the matter of Mr. G., a Senior Advocate of the Supreme Court, ([1955) 1 S.C.R. 490), followed.

Held further, that as the Supreme Court Rules did not specificaly prescribe any procedure for oases coming under r. 30 of 0. IV of the Rules, in the instant case the procedure substantially as in a warrant case under s. 251-A (as amended) of the Code of Criminal Procedure should be adopted as far as possible subject to such just and expedient modifications as accorded with the rules of natural justice.

'DISCIPLINARY JURISDICTION.

In the matter of summons under Order 4, Rule 30 of the Supreme Court Rules, 1950 (as amended).

Purshottam Tricumdas, B. B. Tawakley, G. G.

Mathur and K. P. Gupta, for the Advocate.

M. G. Setalvad, Attorney-General for India, and B. Sen Assisting the Court.

1956. October 17.

The Judgment of the Court was delivered by

JAGANNADHADAS J.-These proceedings before us arise out of a summons under Order IV, rule 30 of the Supreme Court Rules, 1950, (as amended) issued to Shri 'M', who was originally an Agent of this Court and became an "Advocate on recQrd" under the new rules of this Court which came into force on January 26, 1954. The summons issued calls upon him to show cause why disciplinary action should not be taken against him. It arises on a complaint against him made to the Registrar of this Court by one Attar Singh on December 5, 1955.

The substance of that

7956 complaint is as follows.

The complainant was the appellant in Criminal Appeal No. 12 of 1950 in this In t'e: Shri 'M', an Court. Shri 'M' acted for him in connection with the Adtocate of the appeal. A sum of Rs. 750 was supplied to Shri 'M' supreme court of for the printing charges therein. This sum was de- India posited in due course in the Punjab High Court from - whose judgment the appeal arose. There remained an JagannadhadasJ. unspent balance of Rs. 242-1-9 out of it. Shri 'M' withdrew that money from the High Court without the authority and the knowledge of the complainant.

When, later on, the complainant became aware of it, he demanded refund of the same. Shri 'M' first denied receipt of the money, and thereafter refused to refund it (claiming, as appears later in the evidence, to have appropriated it towards the balance of fees said to be due to him). This complaint was in the usual course put up before his Lordship the Chief Justice who directed the Chamber-Judge, our learned brother, Bhagwati, J., to enquire into it. Notices were issued thereupon both to Shri 'M' and the complainant as well as to three other Advocates of this Court who happened to be associated with that appeal. The enquiry before the learned Judge was fairly elaborate.

Thereat, certain conclusions were reached on the basis of which charges were framed against Shri 'M'.

The present summons to Shri 'M' is with reference to those charges and this Bench has been constituted as a Special Bench under Order IV, rule 30 of the Supreme Court Rules to deal with this matter. The learned Attorney-General has appeared, on notice, to assist the Court.

The rules of this Court do not provide for the procedure to be adopted in such cases; except to say that "the Court shall issue, in the first instance, a summons returnable before the Court or before a Special Bench to be constituted by the Chief Justice to show cause against specified matters". There have been no precedents of this Court so far, to indicate the exact procedure to be adopted. The only previous case of professional misconduct on summons under Order IV, rule 30 of the Supreme Court Rules which this Court had occasion to deal with, was that reported

1956 in In the matter of Mr. '0', a Senior Advocate of the

i Sh . 'M' Supreme Court('). But that was a case in which ac- ,. ;; oc;;, of ; h:" tion had been duly taken against the Advocate by the

supreme Court of Bombay High Court in connection with alleged mis- . India conduct arising within its jurisdiction. The summons issued to the Advocate by this Court was with refer- JagannadhadasJ. ence to the same matter but as regards his position

as a Supreme Court Advocate. (We understand that there were also two such cases in the Federal Court).

In the normal course, and in view of the rather elaborate enquiry which was held by our learned brother, Bhagwati J., we should have been content to confine ourselves to a mere hearing of arguments on the materia.l recorded in that enquiry and come to our own conclusions with reference to the charges set out in the summons. But at the outset, objection was taken to our adopting such a course. The validity of the summons was questioned. It was said that under Order IV, rule 30 of the Supreme Court Rules, the enquiry was to follow a summons which is contemplated as the first step therein. It was also said that the enquiry having been in Chambers, the statements of witneBBes were not on oath. The learned Attorney- General was also inclined to think that there was force in the objections raised. After discussion in court with the Advocates on both sides we felt it desirable to refrain from any decision on the preliminary objection and to give the Agent complained against, the opportunity of a fresh enquiry in open Court on formulated chatges. We accordingly directed by our orders dated May 9, 1956, and September 13, 1956, that evidence should be taken afresh before us and that procedure, substantially as in .a warrant case, should be adopted as far as possible under the amended section 251-A of the Criminal Procedure Code, subject to such modifications therein as may appear to be just and expedient in the circumstances of this case and without affecting the rules of natural justice. We treated the enquiry in Chambers as a preliminary enquiry and heard arguments on both sides with reference to the matter of that enquiry. We

(1) (1955] i s.c.R. 490.

came to the conclusion that this was not a case for 7956 discharge at that sta00'e. We accordingly reframed the In re: Shri 'M', an charges framed by our learned brother, Bhagwati J., Advocate of the and added a fresh charge. No objection has been supreme Court of taken to this course. But it is as well to mention that, India in our opinion, the terms of Order IV, rule 30 of the - Supreme Court Rules do not preclude us from adopt- JagannadhadasJ. ing this course, including the reframing of, or adding to, the charges specified in the original summons, where the material at the preliminary enquiry justifies the same. The fresh enquiry before us in Court has proceeded with reference to the following charges as reframed and added to by us.

"You, 'M', once an Agent of this Court and thereafter an Advocate on record of this Court, are guilty of professional misconduct in that, Firstly, you having deposited a sum of Rs. 750 in the Punjab High Court towards the printing charges of the appeal paper book in Supreme Court Appeal No. 12 of 1950 on behalf of your client, Attar Singh, and having the custody of the receipt issued by the Punjab High Court in respect of the same, applied for and obtained from the Punjab High Court without the authority of your client Attar Singh the balance of Rs. 242-1-9 in the month of March, 1952.

Secondly, that after obtaining the said sum of Rs. 242-1-9 as above from the Punjab High Court you retained that sum. with you and did not return any part thereof to your client, Attar Singh, even though he frequently called upon you to do so and even though you are not entitled to recover from him by way of your professional charges anything beyond a - sum of Rs 72-15-6 by reason of your having agreed to receive a sum of only Rs. 100 towards your fee and no more.

Thirdly, that you after receiving the sum of Rs. 242-1-9 in March 1952, retained the said sum, without any intimation to your client Attar Singh and without claiming any amount as due from him by _way of fees to you and without lodging a bill for taxation against him for a period of over three years".

In re: Shri 'M', an

Advocate of the Supreme Court of India

J a gannatlhahs J.

SUPREME COURT REPORTS rrn56J

The undisputed facts are as follows.

The complainant, Attar Singh, engaged a Senior Advocate of this Court, Sardar RaghbirSingh, who associated with himself Shri M. K. Madan as the Junior Advocate and Shri 'M' as the Agent in the case.

Criminal Appeal No. 12 of 1950 was filed by all these three gentlemen with reference to a Vakalatnama executed by the complainant, Attar Singh, in favour of the Agent, Shri 'M'.

The complainant had to deposit a sum of Rs. 750 in the Punjab High Court for the preparation of the printed record in the appeal. Shri 'M' was entrusted with a bank draft for the said amount.

He deposited it in the Punjab High Court. A receipt for the amount was issued in Shri 'M's name.

The printed record in the case was made ready and dispatched to the Supreme Court about the end of December, 1951.

Thereafter Shri 'M' applied to the High Court for refund of the unspent balance.

He received from the High Court in March, 1952, the sum of Rs. 242-1-9 as the unspent .balance. This amount has not been paid to the complainant by Shri 'M' who claims to have appropriated it towards fees said to be due to him.

Now the case of the complainant is this. When he filed the appeal he was impecunious as he had lost his job by reason of his conviction. He approached Sardar Raghbir Singh, Senior Advocate, through a relation of his and requested him to arrange for the conduct of the appeal on his behalf and to accllpt therefor a fee of Rs. 600 aqd no more, for himself, a Junior Advocate to assist him as well as for an Agent to be in charge, all taken together. It is the complainant's case that Sardar Raghbir Singh agreed to the same and was paid the said amount of Rs. 600 at the very outset, i.e., a few days before the actual filing of the appeal memorandum into this Court and that he (the complainant) was not directly concerned with the fixing up of the Junior Advocate and of the Agent or with the internal distribution of the said sum of Rs. 600 as between the three persons. His case accordingly is that Shri 'M' was not entitled to any further amount by way of fees and that he unauthorisedly withdrew the amount and appropriated it 1956 towards alleged fees.

Attar Singh, the complainant, h b d f h S d In re: Shri 'M', an as een examine in support o is case. ar ar Advocate of the Raghbir Singh and Shri Madan have also been exasupreme Courl of mined to substantiate it: The evidence of Sardar India Raghbir Singh is that he was approached by Attar - Singh through a common friend, that he was asked to JagannadhadasJ. accept a consolidated fee of Rs. 600, that in consultation with a Junior Advocate, Shri Madan, whom he knew well, he accepted the engagement, that Shri Madan broughtin Shri 'M' as the Agent and that the amount of Rs. 600 was paid to him by Attar Singh and was shared by the three Rs. 300 for the Senior, Rs. 200 for the Junior, and Rs. 100 for the Agent.

His evidence is that Shri 'M' was not known to him previously but that he was fixed by Shri Madan, that Shri Madan informed him about Shri 'M' hav, ing agreed to accept the engagement for a fee of Rs. 100

without more and that in pursuance of this arrangement the said sum of Rs. 100 was paid over to Shri 'M' and Rs. 200 to Shri Madan. The Junior Advocate, Shri Madan, has been examined to substantiate that it was he who fixed Shri 'M' as the Agent in the case with the arrangement that the Agent should charge only Rs. 100 as his fee. The evidence of these three persons, Attar Singh, Sar<iar Raghbir Singh and Shri Madan, is that all the above took place a few days prior to th.e filing of the appeal into Court. The appeal was admittedly filed on the 11th May, 1950.

Shri 'M' has offered himself as a witness on his own behalf. He admitted that he was fixed up as an Agent in the appeal through Shri Madan at the request of Sardar Raghbir Singh, but he says that he is not aware of any arrangement between the complainant and Sardar Raghbir Singh or about the pµ, yment of Rs. 600 by the complainant to Sardar Raghbir Singh on the alleged arrangement. He says that, having been taken as an Agent into the case by Sardar Raghbir Singh on the recommendation of Shri Madan, he was paid at the time of filing of the appeal only a sum of Rs. 50 by Attar Singh himself as part payment of his fees and was promised that reasonable fee

.{n re: Shri 'M', an

Advocate of the Supreme Court of

India

JagannadhadasJ.

would be paid later on. He denies that there was any understanding or arrangement that only a sum of Rs. 100 was to be paid to him and also denies that he was paid by Sardar Raghbir Singh the sum of Rs. 100.

To substantiate that the alleged arrangement to accept only Rs. 100 could not be true, he gives evidence that even the Junior, Shri Madan, sent

to him in August, 1952, a bill for Rs. 320 which he says he passed on to Attar Singh and of which he purports to produce a copy. But Shri Madan denies that he ever sent such a bill and Attar Singh denies that he received any such.

The controversy on this part of the case is covered by charge number two.

The two material facts which have to be determined are (1) whether the Agent, Shri 'M', came into this case on a definite arr!).ngement that his entire fee for the case was to be Rs. 100, and (2) whether he was in fact paid the said sum of Rs. 100 by Sardar Raghbir Singh at the outset. The complainant, Attar Singh, is not by himself a direct witness either to the arrangement or to the fact of payment of Rs. 100.

The only material fact which he spoke to on this part of the case is as to hlii arrangement with Sardar Raghbir Singh.

It was that he should fix up, a Junior Advocate and an Agent of his own choice, and accept the sum of Rs. 600 as fees for all the three of them together without claiming anything more. He says also that the said sum of Rs. 600 was paid by him to Sardar Raghbir Singh at the very outset.

Sardar Raghbir Singh admits the payment. There is no reason to doubt that a sum of Rs. 600 was in fact paid by Attar Singh to Sardar Raghbir Singh a few days before the actual filing of the appeal in May, 1950; though Shri 'M' denies knowledge of it. On the evidence as given before us, Shri Madan is the only direct witness to the arrangement with Shri 'M' that a sum of Rs. 100 is to be paid to him and that he should claim nothing more for the conduct of the entire case. The arrangement itself was not made in the presence of Sardar Raghbir Singh but it is Sardar Raghbir Singh's evidence that he was informed about it by Shri Madan.

It is also Sardar Raghbir Singh's evidence that in 1956 pursuance thereof Shri 'M' was paid by him Rs. 100. . , , Th th "d .

Sh . M d . th In re: Shri M, an us on e ev1 ence, as g1v:en, ri a an is e Advocate of the direct witness for the arrangement and Sardar supreme courlof

Raghbir Singh is the direct witness for the payment India and each became aware of the other fact from the conversations between them at the time and in the JagannadhadasJ. course of events. The evidence of both these gentlemen has been commented upon and criticised by the learned Advocate for Shri 'M'. It has been pointed out that these two gentlemen had, in these proceedings, occasion to speak to the facts at three stages, first in answer to letters of enquiry written to each of them by the Registrar of this Court after the complaint was filed and Shri 'M' filed his answer thereto, next when they were examined formally before the learned Judge in Chambers, and now when they are examined before us on oath. It is pointed out that there are substantial variations and developments in their versions. The explanation given by both of them for the variations is that at the earlier stages they did not desire to be more specific or categorical since they were given to understand that the matter would somehow be adjusted, that they did not want to harm Shri 'M' and that the lines on which they were to answer the enquiry from the Registrar, were discussed in a conference between themselves and Shri 'M' with his Advocates. Shri 'M' also admits that there was such a conference. It is urged by the learned Advocate appearing forShri 'M' that this very explanation offered by these two gentlemen shows that their word, even before us, is not to be taken at its face value. It is also pointed out that neither of the Advocates could produce any accounts to substantiate the payments alleged to have been made, nor any record or note as to the amount of fee~ fixed for each and the arrangement with Shri 'M' that has been spoken to. On the other band, they admit that they maintain no accounts at all. It does not.also appear that they maintain any satisfactory diaries or other record which might have corroborated their evidence. The learned Attorney-General while

1956 fairly conceding that there is good deal of room for comment about the evidence of these two gentle- In re: Shri • M'. an

Adoocate of th• men, nrges that we should attach greater value to supreme Court of their present evidence given on oath particularly

India in view of the fact that both of them admit the com- - plainant's story that Rs. 600 was all that was in- JagannadhadasJ. tended to be paid for all the three together and they categorically admit that they have themselves no further claim against the complainant for the work done by them. The learned Attorney-General submits that it is unreasonable to suppose that while both of them accepted comparatively small fees for the whole case, the Agent, Shri 'M', was promised 'a reasonable'fee" without any fixation. He urges further that on his own admission, Shri 'M' can point to nothing in the .diaries or registers said to have been maintained by him for his cases, which may substantiate his version.

He also urges that in view of the probabilities and the evidenceweshould accept not merely that there was a definite arrangement with Shri 'M' to accept only Rs. 100 for the entire case but also that he was in fact paid the said sum of Rs. 100 then and there.

After having given our consideration to the entire evidence on this part qf the case, we are of the opinion that we should dispose of this case without coming to any definite conclusion on the disputed facts, material for this issue. All that we need say is that we are not quite happy about the evidence on both sides bearing on this matter. We are inclined to refrain from recording a categorical finding on this issue, which if found against Shri 'M', may amount virtually to a finding of criminal misappropriation.

We are willing to dispose of this issue .in favour of Shri 'M' by giving him, so far as these proceedings are concerned, the benefit of doubt in respect of the disputed facts material to this issue.

The matter arising under charge No. l may also be shortly disposed of. The question under that charge is whether, for withdrawing the unspent balance from the Punjab High Court, Shri 'M' had the requisite authority. In support of the alleged authority, he relies both on specific authority given to him orally

by or on behalf of the complainant, Attar Singh, and • 1956 also on the authority in his favour for the withdrawal l h . 'M' • l' d f th d' f th V k 1 t "re: S r< 'all as imp ie rom e wor mg o e a a a nama Advocate of tlie executed in his favour by Attar Singh. The evidence St1J>reme Court of in support of the specific oral authority is his . sole 111dia

sta.tepiet before us on oath. He deposes that he was - authorised by the relation (or pairokar) of the com- Jaganr1adhadasJ. plainant, Attar Singh, (who used to go to him in connection with the appeal) to withdraw the unspent balance from the High Court. He stated that he was unable to give the name of the pairokar but that he was sitting in Court while he was giving evidence before us. The alleged relation or pairokar has not been . examined. as a defence witness. In the proceedings before our learned brother, Bhagwati J., his version on this part of the case is contained in paragraph 8 of his affidavit dated the 5th March, 1956, which is as follows: "I requested Attar Singh to remit funds for prosecuting appeal on 21-12-51 and with his permililsion wrote to the High Court on 17-1-52 for refund of the balance out of Rs. 750.

Thus I received Rs: 242-1-9 from High Court in March, 1952".

This clearly indicates that h-is case then was that he had the permission of Attar Singh himself for withdrawal of the balance. But when examined before our learned brother, Bhagwati J., he said as follows:

"Somebody asked me to get the money from the High Court to meet the expenses. Subsequently I wrote to the High Court". . In answer to the specific question who that somebody was he said "I do not remember exactly who it was".

He did not then say that he was the complainant's :relation or pairoka.r. In his cross-examination before us he says "His ·(Attar Singh'a) relation came to me and told me that I should get the money from the High Court". When further cross-examined with reference to his previous statements he said that when he used the phrase "with hie permission" in bis affidavit. he meant to indicate the agent or pair()kar of Attar Singh and when further pressed as to who that relation was and whether he knows his name he was unable

822 StJPREME COURT REPORTS [1!156)

7956 to give any satisfactory answers. His evidence on

1 . Sh . 'M' this part of the case is highly unsatisfactory and can-

".t; oc.: ofth:n not be accepted. We have no hesitation in coming Supreme court of to the conclusion that he has not proved the specific

India oral authority, which he has pleaded, for the withdrawal of the balance amount.

JagannadhadasJ.

Wh t • t l' d t f h h a is nex re ie upon. m suppor o t e aut ority is the Vakalatnama exeeuted by Attar Singh in his favour. The vakalatnama is in form No. 3 of the Fifth Schedule of the Supreme "ourt Rules, 1950,'before their amendment in 1954.

What is relied upon is that this form authorises the Agent not only to deposit moneys but also to draw moneys. It isalso urged that an Agent has the power by virtue of the specific wording of the vakalatnama "to do all things incidental to his acting" for his client in connection with the appeal. It is urged that the deposit of printing charges and the withdrawal of the unspent ha.lance of the printing charges are all acts incidental to acting for a client in connection with his appeal. On the other side it is pointed out that the form itself indicates that the acting is to be in connection with the work in the Supreme Court since it is headed "in the Supreme Court of India" and that the authority arising under this vakala.tnama cannot extend to acts to be da, ne in the Punjab High Court. We do not consider it necessary to decide about the exact scope of the power exercisable under the vakalatnama. with reference to the form that has been employed. There is the outstanding fact in this case that the amount has been in fact paid by Shri 'M' direct into the Punjab High Court on a letter issued by the High Court to him. There is also the fact that the receipt for the said a.mount has been issued by the High Court to him and in his name. There is the further fact that the unspent balance has been paid by the High Court directly to him without requiring any further written power or authority, apparently because he was the depositor and was therefore presumably entitled to withdraw the unspent balance. In view of these facts it would appear that the High Court itself was under the impression that the withdrawal was within the

scope of Shri 'M's authority as an Agent for the ap- 1'56 P. eal in the Supreme Court. This impression, if wrong, 1 . Sh . 'M' - b h d b Sb 'M' n re. rt ' an was one that may well have een s are y n Adoeateofthe equally with the High Court. In these circumstances, supreme Court of while we definitely hold that the specific oral autho- India rity set up has not been proved, it appears to us that - t" db t k f th" h JagannadhadaaJ, no serious no ice nee e a en o is c arge.

What remains is charge No. 3 which is as follows:

"That you after receiving tlhe sum of Rs. 242-1-9 in March 1952, retained the said sum, without any intimation to your client Attar Singh and without claiming any amount as due from him by way of fees to you and without lodging a bill for taxation against him for a period of over three years".

The questions which require consideration under this charge are (1) whether Shri 'M' intimated Attar Singh about the withdrawal of the unspent balance of printing charges, (2) whether Shri 'M' intimated Attar Singh that any fee remained due and made any demand in that behalf, and (3) whether Shri 'M' was justified in retaining the amount towards fees without lodging a bill for taxation aginst his client.

It is now necessary to recall the relevant facts and enumer:ate some further facts. Criminal Appeal No. 12 of 1950 was filed into this Court on My 11, 1950, by the Agent, Shri 'M', on the basis of a vakalatnama signed by Attar Singh without date and accepted by Shri 'M' on May 11, 1950. Attar Singh says that when he signed the vaka]atnama there were blanks therein and that after signing, he gave the vakalatnama with the blanks to Sardar Ra.ghbir Singh. It is his evidence that having fixed the engagement with Sardar Raghbit Singh and paid the money into his hands, he went away leaving the actual filing of the appeal, on a later date, to Sardar

Raghbir Singh. Shii 'M' who accepted the vakalatnama on May 11, 1950, and who filed the appeal memorandum into Court on the same date with the signatures thereon, also of Sardar Raghbir Singh and Shri Madan, admits that the blanks in the vakalatnama were filled in by him in his own handwriting. But he says that Attar Singh was also present at the time of

1956 his acceptance of vakalatnama and the filing of the appeal and that Attar Singh then paid him a sum of Jn re: Shri 'M', an • h 1 f " H Advocate of the Rs. 50 wit out any sett ement o .ees. e says s..preme c0,.rt of further that when he accepted the engagement he was India given to .understand by Sardar Raghbir Singh that - he would be paid reasonable fee. This was at the time JagannadhadasJ. when the appeal was filed in Court and presumably

in the presence of Attar Singh according to him.

Attar Singh denies that he was present or paid Rs. 50 to Shri 'M' at the time of filing the appeal or that he met Shri 'M' at all at the time.

On his evidence, if accepted, Shri 'M' could have no .expectation of any further payment of fe(ls.

About an year later there was the payment of Rs. 750, towards the printing charges.

It is admitted that the amount was supplied by means of a draft in favour of the Deputy Registrar of the High Court given to Sardar Raghbir Singh, by the brother-in-law of Attar Singh. This wa11 passed on to Shri 'M' who sent it onto the High Court.

A receipt dated July 19, 1951, was issued therefor by the High Court in Shri 'M's name. It is in evidence that the printed record was received in the Supreme Court in December, 1951. Intimation of the same was presumably given to the Agents concerned in due course. Shri 'M' applied to the High Court in Janu, ary, 1952, for refund of the unspent balance of the printing charges and re9eived an amount of Rs. 242-1-9 in March, 1952. The appeal was set down for he:i.ring m May, 1952. It is the evidence of Attar Singh that on receiving intimation that the appeal was coming up for hearing he came down to Delhi from Bombay, where he was employed at the time, and found that Sardar Raghbir Singh had left for China and was not available for arguing the appeal.

His evidence is that he enquired from the wife of Sardar Raghbir Singh who told him to meet Shri 'M' which he did.

He says that they came to the conclusion that Shri Umrigar, an Advocate of this Court, was to be engaged to argue the appeal. Thereupon Shri Umrigar was fixed up.

The appeal was not actually taken up in May, 1952, as expected. The engagements of both Sardar Raghbir Singh and Shri Madan were terminated sometime in August, 1952, by Shri 'M' under 1956 instructions of Attar Singh. The appeal came up for 1: . • Sh . 'M' h ' l

 N b 195" I Sh ' n re. r• ' an earing, a ter on, m ovem er, ::.. t was r1 Adwcate of the Umrigar who argued the appeal.

Admittedly Shri supreme Court of 'M' was also present at the hearing and instructed India Shri Umrigar. The judgment in the appeal wa-s deli- -. vered on the 5th December, 1952, allowing the appeal JagannadhadasJ. and remanding it for further hearing by the Sessions Court, as an appellate court, on the evidence on record. It would appear that nearly two years later, i.e., on November 24, 1954, Attar Singh applied to the Punjab High Court stating that he had paid Rs. 750 for the printing charges of the record in his appeal and that some balance was lying to his credit out of the said amount and requesting that the same may be remitted to him. He received a reply thereto from the Deputy Registrar of the Punjab High Court dated October 17, 1955, intimatingthat theunspentbalanee of Rs. 242-1-9 was refunded to his counsel, Shri 'M' of the Supreme Court, and advising him to contact him in this behalf. It is in view of this information that Attar Singh ultimately filed on December 5, 1955, a complaint on which the present proceedings were initiated.

The evidence of Attar Singh on this part of the case is quite simple. He says that some time after the appeal was filed, i.e., in or about January 1951, he went away to Bombay in connection withprivateemployment which he had obtained there and that he came to Delhi again only in May, 1952, on receiving intimation that his appeal was expected to be taken up. He says further that since the appeal was not taken np in May and went beyond the long vacation he got himself transferred to, and remained in, Delhi since about May, 1952.

He says that he came into direct contact with Shri 'M' only from May, 1952, and that he had not met him till then. It is also his evidence that he was never told by Shri 'M' about the unspent balance being available or of his having withdraiWn the same. He was also not told that any fees had yet to be paid. He was under the impression that no further fee was due to Shri 'M' and that his

In t'e: Shri 'M', an

Advoc4te of the Supreme COt, rl of

India

Jagannadhadas}.

fees must have been paid up at the outset by Sardar Raghbir Singh. There wa~. no demand by Shri 'M' from him at any time for balanceof fees, not even at the time when his appeal was heard by this Court for two or three days. Towards the end of 1954, he was greatly in need of money on account of the further proceedings in his appeal consequent on the remand.

He then felt that he might enquire from the High Court about the availability of anY. unspent balance out of the printing charges deposited and get back the same and meet his needs. He accordingly wrote a letter to the High Court in November, 1954. He had to send a number' of reminders. He ultimately received the reply dated October 17, 1955, from the High Court nearly an year after his first enquiry.

According to Attar Singh, before he wrote to the High Court enquiring about the unspent balance, he approached Shri 'M' and enquired from him. It was on his advice that he wrote to the High Court. His evidence further is that .when he actually received the letter from the Deputy Registrar of the High Court dated October 17, 1955, he again met Shri 'M' about the unspent balance and enquired of him whether he had received the amount, but that Shri 'M' denied having received any money. He says that thereafter he confronted him with the reply he had received from the High Court and that on seeing it Shri 'M' was astonished and told him to come later on. He states. that when he went to him again, Shri 'M' told him that he will return the money after two days, but that ultimately he evaded him. It was after this that at the suggestion of some friends, he lodged the complaint with the Registrar of this Court.

As against this, Shri 'M's evidence is as follows.

When the pri.nted record was received from the High Court, and he got intimation of the same, he wrote a letter dated December 21, 1951, to Attar Singh intimating that the printed record had been received in the Supreme Court, that further steps have to be taken and that he is to supply him with fund!! therefor. He says that thereafter Attar Singh's relation came to him in January, 1952, and told him to write

- '

to the High Court to get a refund of the unspent 7956 balance of the printing charges. He admits that he d h In re: Shri 'M', an received the refund in March, 1952, an says that e Advocate of the appropriated the same towards his fee. He also says s .. preme comt of that when in May, 1952, Attar Singh came in connec- India tion with the expected hearing of the appeal, he told - him about the unspent balance having been received JaeannadhadasJ. by him and that later on, i.e.; after the hearing of the appeal was over, he told him that the bill for the work done by him in connection with the appeal would be about Rs. 500. He denies the versio11 of Attar Singh

that he was not aware of the unspent balance having been drawn and that for the first time he contacted Shri 'M' in 1954 for the unspent balance and wrote to the High Court on his advice for refund of the balance, if any. He denies specifically that Attar Singh met him in this connection a number of times and wrote reminders to the High Court at his instance.

He also denies categorically that he was confronted by Attar Singh with the letter received by him from the High Court and that he then told him all that had happened.

The question before us is which of these versions is to be accepted. Was there any intimation by Shri 'M' to Attar Singh that he withdrew the unspent balance and did he demand from him the alleged balance of fees?

Admittedly, there was no written intimation and no specific written demand. The orily writing from himself to his client that Shri 'M' relies on, is a letter dated December 21, 1951. He produces an alleged copy thereof which is as follows:

"S. Attar Singh

C/o Gurdwara Sisganj, Delhi.

Dear Sir,

Your appeal pending in the Supreme Court No. 12 of 1950 is ripe for further step.s as the record has been printed and despatched by the High Court, Simla.

Now you haveto supply me withfundsfordrafting petition of appeal, statement of case, affidavits of service of notices and typing charges.

In re: Shri 'M', an

Advocate of the

Suprme Court of

India

JagannadliadasJ,

Since the record has reached the Supreme Court on 12th December 1951, you are to file petition within 30 days of receipt of this date.

Please treat this as very urgent, otherwise the appeal shall be dismissed for non-prosecution".

It may be notiCed that the wordng of this letter does not in terms state that what is "being demanded is his own fees, Paragraph2 of the letter may well be understood by a lay-man, as asking for nothing more than expenses to be incul'red. Attar Singh deposes that he never received the letter. It is clear from the evidence that Attar Singh was not in Delhi at the time and it is cur.ions that the letter is addressed to him at Sisganj Gurdwara, Delhi. Shri 'M' has been cross-examined on this and in our opinion, he has not been able to give any satisfactory explanation. He says that the address was furnished by SardBr Raghbir Singh. E.ut Sardar Raghbir Singh was not asked about it.

Assuming the letter to be true, it is obvious that.it would not have been received by Attar Singh. Clearly no money has been remitted, nor any written communication received, in response to this letter.. If the letter is true, one would have" expected some further letter to have been written to him with the correct address on proper enquiry.

It is to get over this difficulty that the story has been put forward by Sbri 'M' of a relation of Attar Singh having contacted him in January, 1952, and instructing him to withdraw the unspent balance, if any, of the printing charges.

There is nothing to show that these alleged instructions were by way of response to the above letter. It is not a little surprising that the said relation does not appear to have cared to ascertain whether any money was in fact available or was received . . But it is unnecessary to dwell on this any further because we have already noticed the entire evidence relating to these alleged instructions of the relation and seen bow unsatisfactory it is. We are clearly of the opinion that the story of instructions by the relation is wholly unreliable.

In that view, assuming, without deciding that the letter of December 21, 19.51, is true, it is all the more significant that there are no

further reminders to Attar Singh to his correct 7956 address right up to May, 1952, i.e., when the appeal 1 . Sh . 'M' b d h • h h . th . 1 n re. r• ' an ecame rea y 1.or earing, t oug m e m terva Ad'1ocat• of tile Attar Singh was not in Delhi.

It is also surprising supreme Court of that even after the disposal of the appeal and up to India the stage of the complaint, Shri 'M' did not make any - written demand or send any bill for the fees to Attar JagannadhadasJ, Singh.

It is only in the reply dated December 16, 1955 to the complaint, filed before our learned brother, Bbagwati, J., by Attar Singh that a referece is made to his bill of about Rs. 550 against Attar Singh for the work done by him on his behalf.

The bill was in fact produced at a later date on March 5, 1956, along with his affidavit filed before Bhagwati, J. In paragraph 9 of that affidavit he says "I1 as agent, had lien over the sum of Rs. 242-1-9 which was appropriated towards my bill for Rs. 542-15-9 (herewith attached). Rs. 250 is still due to me from Attar Singh". That bill has also been marked before us as an exhibit on behalf of Shri 'M'.

It is the evidence of Shri 'M', as already stated, that when he accepted the engagement he was given to understand that be would be paid a reasonable fee but that there was no settlement at the time.

He is not very clear in his evidence what was the aggregate reasonable fee which he was entitled to. But from the statement in his evidence that he informed his client after the appeal was finished, that his bill would be Rs. 500 it may be presumed that his case is that he was entitled to the amount of his bill as exhibited.

If so, there should have been no difficulty in his applying to the Court for taxation against his client.

We have been informed that such a course is permissible under orders of the Court, even in a criminal matter. But Shri 'M' admits that he took no such step in spite of the fact that a large and substantial balance should have been due to him according to his case.

When asked to explain why he did not do so, his answer is as follows:

"Because the appeal was remanded and it is a general practice here that when the case is finished the clients do pay the balance.

So we do not'insist 10$

- 1956

further.

Generally when the appeal or a matter is finished I do not make complaints or file suits or do Iii re: Shri 'M', an Advocate of the anything for the balance of fees because mostly these supreme court of matters create fuss.

I did not, in this matter, press India for the balance". - It may be noticed that in the bill the total of the JagannadhadasJ. items of out-of-pocket expenses is Rs. 22-15-6, leaving a balance of Rs. 27-0-6 out of the amount of Rs. 50, which on his own showing, he' had received from his client.

All the rest of the bill submitted by him is a claim for fees for various items of work said to have been done. If it be true, as he says, that he sent in December, 1951, a letter to Attar Singh demanding fees, it is all the more surprising that he never made any further written demand either during the pendency of the appeal or at least sent a bill after the disposal thereof, for the balance of the fees, whether or not he would have felt it advisable later on to take the matter to court for taxation. This admitted inaction renders it probable that, having obtained the refund of a substantial amount of over Rs. 200 after December, 1951, without the specific oral instructions or the knowledge of his client or his agent-as we have already found-he has kept discreetly silent, without intimating to the client the fact of his having received the balance and without making a demand against him for the fees. It is only now that he claims a lien on the said amount for a bill which he puts forward, and pleads justification for the retention and appropriation of the amount on the basis of that bill. Learned counsel for Shri 'M' very strongly urges that the evidence of Attar Singh that he was not informed by Sbri 'M' about having obtained refund of the unspent balance and that at no time was any demand made to his knowledge for the balance of fees should be rejected as being utterly improbable.

He urges that the evidence of Shri 'M' that he orally intimated to him the fact of his having obtained refund of the unspent balance, and of his making constant oral demands for the balance of fees should be accepted. He suggests that it is Attar Singh who discreetly evaded raising the question abou.t the balance

of fees due, with full knowledge that some amount 7956 had already been received by Shri 'M' and that a 1 S-h

. 'M' d l n re: ri , au much larger amount wo1Jld be found ue on a regu ar Advocate of the bill. He urges that ifthere is no reasonable proof of supreme Court of the arrangement that Shri 'M' was to receive only India Rs. 100 and of the fact of payment thereof, it is very -. - unlikely that a professional gentleman like Shri 'M' JagannadhadasJ, would go on working in the appeal without making even an oral demand for fees unless he was permitted by the client to withdraw and appropriate the amount.

He strongly urges that the conduct of Attar Singh himself on this part of the case gives room for considerable suspicion. It is pointed out that though the appeal was disposed of in December, 1952, he makes no enquiry for the unspent balance until after nearly two years. It is urged that he has no satisfactory account how he then came to know that there was a balance at all, the payment of which he might obtain from the High Court. It is submitted tliat his story that it was at the instance of Shri 'M' himself that he wrote to the Punjab High Court making enquiries about the balance is utterly improbable. We are not, however, impressed with the soundness of these comments.

We see no difficulty in accepting the explanation of Attar Singh that he came to think of the possibility of obtaining the unspent balance, if any, which may be available to him, only when he was hard-pressed for money for 1; he further conduct of his criminal appeal as a resuilt of the remand.

It may or may not be that the letters of Attar Singh to the Punjab High Court enquiring about the unspent balance were written on the advice of Shri 'M', but the fact remains that for an adequate reason as given by him he did start enquiries in this behalf so late as two years after the disposal of the appeal.

On this part of the case what is really significant is that at the earliest opportunity which Shri 'M' had, he did not put forward his present specific case, of intimation of the refund and of demand of the fees.

Para 5 of the complaint of Attar Singh dated December 5, 1955, states as follows:

"I had throughout been making enquiries from

In re: Shri •M•, an

dvocate of the Supreme Court of India

Jagannadhadas/,

Shri 'M' and he has consistently denied having received any money from the High Court".

In his reply dated December 16, 1955, Shri 'M' has contented himself with a bare denial as follows:

"Para 5 of the application is emphatically denied and not admitted".

Even in his later statement, in the form of an affidavit dated March 5, 1956, filed before Bhagwati, J. all that he says is that "on December 21, 1951, he requested Attar Singh to remit funds for prosecuting the appeal and that with his permission wrote to the High Court on January 17, 1952, for the refund of the balance. He has attempted to explain that by "his permission" he meant "his pairokar's permission". We have found that, on the evidence and probabilities, the story of pairokar's permission cannot be accepted as reliable. The story of his having directly informed Attar Singh about his having got the balance occurs for the first time in the crossexamination before Bhagwati, J., wherein he says that he told him about it at the time of the hearing of the appeal. But even there he says that he did not at that time ask for anything further. There he admits that it is only when Attar Singh asked him to refund the money that he told him that he should pay him the balance due. Now, it is in this Court in the cross-examination of Attar Singh that the story of his having informed Attar Singh about his obtain .. ing from the High Court refund of the unspent balance and of his having dema:nded the fees due to him, all at the time of hearing of the appeal,-has been put forward in the following questions and answers.

"Q. In fact, at the time when your appeal was heard Mr. 'M' had told you that Rs. 242, had been recovered from the High Court?

A. It is far from true.

He also told you that his fees has got to be paid?

No.

You said nothing about it because you knew that more fees than Rs. 242 would be due to Mr. 'M'!

The question does not arise".

The further cross-examination of Attar Singh is as 1956 follows.

In re: Sliri 'M•, an "Q. I am putting it to you that your talk that Advocate of the you showed the letter of the !"7th October, 1955 to s .. preme co,, rt of Mr. 'M' is a pure fabrication?

India A.

No, it is correct. - Q. I will tell you what. had happened. You had JagannadhadasJ. asked 'M', 'M' had told you (this is my case) that he had recovered Rs. 242 and when you said 'what about Rs. 242' he said 'you have got to pay my fees', which would come to much more, and therefore thereafter there was no further talk between you both?

Nothing was talked by Mr. 'M' to me then, nor up till now".

This belated case about intimation of withdrawal of unspent balance and about demand for fees having been made at the time of the hearing of the appeal, cannot be accepted as true.. His admission before Bhagwati, J. that even at the time of the hearing of the appeal (which admittedly took two or three days) he did not ask for anything further must be accepted as correct. If so that would make it very probable that the first information to Attar Singh about the fact of Shri 'M' having obtained refund of the unspent balance of the printing charges was only when the High Court intimated the same to him. It follows that the first oral demand for the fees by Shri

'M' to Attar Singh, may have been when he was confronted with the letter of the High Court. This is what he admitted in the enquiry before Bhagwa.ti, J.

It may further be noticed that Shri 'M' states in his evidence as follows:

"After I received this money (unspent balance) I appropriated it towards my fee. There was no settlement of fees between me and my client. Raghbir Singh never told me that I should get only Rs. 50 or Rs. 100".

He was cross-examined whether the appropriation was with the consent of the client, as appears from the following.

"Q. Coming to May, 1952, when you said you told the client that you had received money did you

7956 tell him that you appropriated the money.

1 , , A.

Yes. n re: Shri M, an Ad<ocate of the Q.

No question there1ore remained of any lien. supreme Court of The money was appropriated towards fees.

India A.

This is all opinion whether it was lien or - appropriation. It was lien. So I appropriated it.

JagannadhadasJ.

You had lien.

A. Yes.

You appropriated with the client's consent.

The consent was there".

How unsatisfactory his answers are as to the client's co11sent for appropriation even on his own case that the amount was appropriated is noticeable.

We are, therefore, of the opinion that the following facts have been proved. Without the knowledge of or intimation to Attar Singh, Shri 'M' obtained in March, 1952, from the High Court the unspent balance of printing charges deposited by him on behalf of his client Attar Singh amounting to the sum of Rs. 242-1-9. He retained the same without any intimation to his client and without making a demand or lodging a bill for any amount as due from him by way of fees.

The Tact of his having obtained the refund became known to Attar Singh for the first time only by the letter of the Punjab High Court to him and it was only when Shri 'M' was confronted with the same that he raised the question of payment of fees with Attar Singh. Prior thereto he denied receipt of any such moneys when asked by.hisclioot about it and did not make any demand for fees. In fact he appropriated the amount, on receiving it, without any demand for fees or lodging a bill for taxation and without the knowledge and consent of the client.

The question that next arises for consideration is whether on these facts Shri 'M' is guilty of professional misconduct. It is urged before us that an Agent has a lien on the moneys of his client coming into his hands for the reasonable fee that may be due to him if-as may be assumed for the purposes of this case-the fee was not settled originally. It is urged that in this case Shri 'M' has done nothing more than exercising that lien and appropriating the

amount which legitimately came into his hands towards what he considered 1:is reasonable fee due to

In 1e: Shri 'M', au. himself leaving the settlement of any further fee that Adocate of the may be due to him to the good sense and the good will Suf>re"'e Court_pJ_ of the client on the termination of the case. It is India urged that on this view his action is bona fide. It is - pointed out that while, it may be, that such conduct JagannadhadasJ. is not consistent with the highest professional standards, it cannot be treated as amounting to professional misconduct. It is urged the.tit is not every conduct which may be considered unjustifiable or improper that amounts to professional! misconduct if in fact the agent or advocate honestly believed that he was justified in adopting the course he did so long as such a course is not, in terms, prohibited by any positive rules framed by competent authority to regulate the conduct of agents and advocates in such matters. We are unable to accept this contention. As has been laid down by this Court In the matter of Mr. 'G', a Senior Advocate of the Supreme Court (supra) "the Court, in dealing with cases of profesisional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to curtain disabilities which do not attach to other men and which do not attach even to them in a non-professional character" ................. "He (a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action".

It appears to us that the fact of there being no specific rules governing the particufar situation, which we are dealing with, on the facts found by us, is not any reason for accepting a less rigid standard. If any, the absence of rules increases the responsibility of the mem hers of the profession attached to this Court as to how they should conduct themselves in such situations, having regard to the very high privilege that

1956 an Advocate of this Court now enjoys as one entitled,

1 Sh . 'M under the law, to practice in all the courts in India.

nA; oca;; 01 ;;.:n We are conscious that at the time when the relevant Sufe'cme Court of facts happened in this case Shri 'M' was only an Agent.

India But at the time when he was confronted with the Jetter . - of the Punjab High Court intimating receipt of the JagannadhadasJ. unspent balance, he had already become an Advocate on record and we haye to deal with this case with reference to rule 30 of Order IV of the amended Supreme Court Rules. That rule says "Where .... the Court is of opinion that an Advocate has been guilty of misconduct or of conduct unbecoming of an Advocate, the Court may take disciplinary ?-Ction as provided therein". Even under rules 31and32 of Order IV of the Supreme Court Rules prior to the amendment, the position would be the same in so far as a matter of the kind with which we are dealing is concerned. It is true that under rule 32 of the old rules which refers to drsciplinary action against agents, the phrase "conduct unbecoming of an Advocate" is not to be found. But that is probably only because in certain matters the Agent's position in relation to his client may differ from that of an Advocate. But we have no reason to think that in respect of a matter such as the one we are concerned with, the standard applicable to an Agent or to a present "Advocate on record" is anything different.

We have no doubt in our mind that the high standards of the profession demand that when the moneys of the client come into the possession of an Agent or an Advocate, otherwise than as earmarked fees, he has to treat himself as in the position of a trustee for the client in respect of the said moneys. Even if he has a lien on such moneys, jt would be improper for him to retain, i.e., to appropriate the same towards his fees without the consent, express or implied, of his client or without an order of the Court. It may be that in certain circumstancs he is entitled to exercise a lien, but he has to give reasonable intimation both of the fact of moneys having come. into his hands and of the exercise of his lien over them until his account is settled. If there has been no prior settlement of fees he ca.nnot constitute

- -

himself a judge in his own cause as to what would be 1956 the reasonable fee payable to him. This position of r,

. ;;;;-:.M, trusteeship in respect of moneys of the client in his ::i:aca:O' 01 th:n

hands is all the greater where the moneys represent supreme Courlol the unspent balance of what was given for a specific India purpose, such as for payment of printing ch&rges, as - . in this case. On any such unspent balance, it is well JagannadhadasJ. settled, that he has no lien either under the common law or by the statute. (See Cordery's Law relating to Solicitors, 4th Edition, page 456 and Halsbury's Laws of England, 2nd E:dition, Vol. 31, page 239, para 265). In this case it appears to us that the retention and appropriation of the money by Shri 'M' without intimation to the elient and without sending a bill to him for his fees or applying for taxation even after disposal of the appeal constitutes professional misconduct. This is aggravated by the facts emerging from the evidence of Attar Singh who, Shri

'M' admits, has no animus against him, and whose evidence on this part of the cas.e we see no reason not to accept. That evidence show13 that when in 1954 Attar Singh enquired of Shri 'M' he denied knowledge of the unspent balance and that when confronted with the letter received from the Punjab High Court be admitted receipt and demanded fees but evaded the situation without fairly and frankly facing it.

Shri 'M' appears to have been enrolled as an Agent in 1949 and he says that when, at the instance of Shri Madan and Sardar Raghhir Singh he accepted the engagement in May, 1950, it was his third or fourth engagement as Agent. There may, no doubt, be cases where an unscrupulous client may take advantage of and exploit a. beginner in the llegal profession. But we are satisfied that this is not such a case.

We are clearly of the opinion that Shri 'M' is guilty of professional misconduct. We direct that he should be suspended from practice foir a period of two years.

Order accordingly.

101)

JAGANNADHADAS

B. P. SINHA, JJ.

Supreme Court

January 26,

1954

Punjab High Court

Order IV of the Supreme Court Rules

Rohtas Industries

S. K. Das

[1955) 1 S.C.R. 490

s. 251

Code of Criminal Procedure

Order 4, Rule 30

Supreme Court Rules, 1950

Purshottam Tricumdas

B. B. Tawakley

G. G.

Mathur

K. P. Gupta

M. G. Setalvad

B. Sen

Supreme Court Rules, 1950

January 26, 1954

Attar Singh

December 5, 1955

Bhagwati

supreme Court of Bombay High Court

JagannadhadasJ.

Supreme Court Rules

May 9, 1956

September 13, 1956

section 251

India

Supreme Court Rules

Supreme Court of India

Attar Singh

Sardar RaghbirSingh

M. K. Madan

M' as the Agent in the case.

Sardar Raghbir Singh

Raghbir Singh

Madan

Sardar India Raghbir Singh

Attar - Singh

Attar Singh

Sar<iar Raghbir Singh

11th May, 1950

Supreme Court of

India

Raghbir Singh

M'.

5th March, 1956

Attar Singh'a

Supreme court

Fifth Schedule

supreme Court

JagannadhadaaJ

My 11, 1950

May 11, 1950

Sardar Ra.ghbir Singh

Sardar Raghbit Singh

July 19, 1951

Delhi

Bombay

China

Umrigar

supreme Court of 'M

24, 1954

October 17, 1955

Supreme COt, rl of

India

Jagannadhadas

December 21, 1951

JaeannadhadasJ.

S. Attar Singh

Supreme Court No. 12 of 1950

JagannadliadasJ

SardBr Raghbir Singh

E.ut Sardar Raghbir Singh

December 21, 19.51

Attar JagannadhadasJ

December 16, 1955

Bbagwati

Attar Singh

March 5, 1956

M' JagannadhadasJ

January 17, 1952

Sliri

Bhagwa.ti,

Order IV of the Supreme Court Rules

Cordery

England

Sardar Raghhir Singh