judgement:
ICTION: Criminal Appeal 24 of 1976.
From the Judgment and Order dated 31 9 1974 of the Punjab and Haryana High Court in Criminal Writ No. 32 of 1970.
B. Sen. (for appellant No. 1), A. K. Sen (for Appellant No. 2), J. C. Bhatt (for appellant No. 3), F. section Nariman (for appellant No. 4), A. B. Diwan (for appellant No. 4), I.N. Shroff and H. section Parihar for the Appellants.
D. Mukherjee, E. C. Agrawala and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
During the course of on spot check carried out by him on December 29, 1964 of B.P. sheets lying in appellant No. 1 's factory at Sonepat, the Development Officer (LME 1) of the Directorate General of Technical Development, New Delhi, discovered from an examination of the said appellant 's account books that it had during the period intervening between January 1, 1964 and January 12, 1965, acquired black plain iron sheets of prime quality weighing 1073 60.03 metric tons from various parties at a rate higher than the maximum statutory price fixed for such sheets by the Iron and Steel Controller (hereinafter referred to as 'the Controller ') in exercise of the powers vested in him under clause 15(1) of the Iron and Steel (Control) Order, 1956 (hereinafter referred to as 'the Control Order.
After the Special Magistrate had framed the charges and secured in the Court of the Special Magistrate, Ambala Cantt for an offence under section 120 B of the Indian Penal Code read with section 7 of the (Act No. 10 of 1955) (hereinafter referred to as 'the Act ') as also for an offence under section 7 of the Act read with clause 15 (3) of the Control Order.
After the Special Magistrate had framed the charges and examined sixteen prosecution witnesses, the appellants made an application before him on February 12, 1970 under section 251A (11) and 288 (1) of the Code of Criminal Procedure, 1898 praying that in view of the submissions made therein, the case against them be not proceeded with and they be acquitted.
The trial Magistrate dismissed the application vide his order dated June 4, 1970, relevant portion whereof is extracted below for facility of reference : "In the light of the above observations, I am prevented from determining the case otherwise than by making an order of acquittal or conviction which I can pass only after recording further evidence both of prosecution and in defence.
Regarding various objections raised by the learned counsel for the accused on the points that the notifications were not placed before the Parliament and within a reasonable time and also on the points of formation of opinion and delegation of powers I may submit that the prosecution cannot be prevented from adducing evidence regarding the formation of opinion and laying of the notifications before the Parliament which can be proved by the contemporaneous record.
Regarding the non prosecution of the sellers of the black iron sheets it does not lie in the mouth of the accused to say that such and such person has not been prosecuted.
I need not to give my observations on merits on the points regarding subsequent exemption of control mens rea, formation of opinion and delegation of powers in laying notifications before the Parliament and also need not discuss the citations as I will have to consider 1074 all these points at the time of final arguments and any order given now will not be proper.
I dismiss the application of the accused on the short ground that it is not possible for this Court to hold that the cognizance was taken on an invalid report and the order of the Court ordering framing of charge is a nullity on the ground that on record no offence is committed and no cognizance could be taken.
" Aggrieved by the aforesaid order of the Special Magistrate, the appellants moved the High Court of Punjab and Harayana under Articles 226 and 227 of the Constitution and section 561 A of the Code of Criminal Procedure, 1898 challenging their prosecution inter alia on the grounds that the Control Order and the notification which formed the basis of their prosecution did not have the force of law as they had not been laid before the Houses of Parliament within a reasonable time as required under section 3(6) of the Act; that the Control Order and the Notification fixing the maximum selling price of the commodity in question for the contravention of which the appellants had been hauled up were invalid as the same did not appear to be preceded by the formation of the requisite opinion under section 3(1) of the Act which was a sine qua non for issue of any order by the Central Government or by the Controller; that none of the 18 concerns which, according to the prosecution sold the aforesaid B.P. sheets to the appellants and who were equally guilty of the offence under section 7 of the Act having been proceeded against, in the Court of the competent jurisdiction, the prosecution of the appellants was violative of Article 14 of the Constitution and that the purchases of the aforesaid B.P. sheets having been openly made and entered in the account books of appellant No. 1, the mens rea which was a necessary ingredient of the offence under section 7 of the Act was totally lacking in the case.
In the return filed by it in opposition to the writ petition, the respondent while denying that the Control Order had not been placed before both Houses of Parliament, as required by sub section (6) of section 3 of the Act or that the issue of the Control Order or the Notification fixing maximum selling prices of various categories of iron and steel including the commodity in question was not based on the formation of the opinion envisaged by sub section 1 of section 3 of the Act conceded that the notification fixing the maximum selling prices of the categories of iron and steel including the commodity in question had not been placed before both Houses of Parliament but contended that the provisions of sub section (6) of section 3 of the 1075 Act requiring the placing of the order contained in the aforesaid notification before both Houses of Parliament were directory and not mandatory and the omission to comply with that requirement did not have the effect of invalidating the notification.
The respondent further contended that the notification fixing the maximum selling prices of various categories of iron and steel including the black plain iron sheets being a part of the Control Order and a piece of delegated legislation, it was not necessary to lay it before the Houses of Parliament.
It was also pleaded by the respondent that the mensrea of the accused was manifest from various manipulations resorted to by them as also from the fact that they wanted to increase their production and earn more profits.
The respondent also averred that launching of prosecution against any person depended on the availability of sufficient evidence and that non prosecution of the sellers of the iron sheets in question did not involve any discrimination as envisaged by Article 14 of the Constitution but was due to non availability of adequate and reliable evidence against them.
After careful consideration of the rival contentions of the parties, the High Court by its elaborate judgment and order dated May 31, 1974 dismissed the petition overruling the contentions of the appellants.
One of the learned Judges of the High Court constituting the Bench which dealt with the writ petition also observed that the Notification in question had not in reality been issued under section 3 of the Act which required it to be laid before both Houses of Parliament but was issued in exercise of the power conferred by section 4 of the Act which plainly related to issue of incidental orders arising out of the nature of the powers conferred and duties imposed thereunder and the purpose whereof was to enable the various authorities mentioned therein to provide the details to fill up gaps in the Control Orders issued under section 3 of the Act so as to ensure the harmonious and rational working of the orders.
The High Court, however, being of the opinion that the case involved a substantial question of law relating to the vires of the notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question certified the case as eminently fit for appeal to this Court.
This is how the case is before us.
At the hearing of the appeal though the learned counsel for the appellants have reiterated all the contentions raised by them in the aforesaid writ petition, the only substantial question of law with which we are concerned at the present stage is whether the aforesaid notification fixing the maximum selling price of the commodity in question is void for not having been laid before both Houses of Parliament.
1076 For a proper determination of the aforesaid question, it is necessary to notice a few provisions of the Act which are relevant for the purpose of the appeal.
Section 2 is a glossary of the Act.
According to clause (a)(vi) of the said section, iron and steel and manufactured products thereof fall within the ambit of the expression "essential commodity".
Sub section (1) of section 3 of the Act confers on the Central Government the general power of making and issuing orders providing for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing its equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations.
Sub section (2) of section 3 of the Act specifies the orders which without prejudice to the generality of the powers conferred by subsection (1) of section 3 can be issued thereunder.
Clause (c) of sub section (2) of section 3 of the Act authorities the issue of an order for controlling the price at which any essential commodity may be bought or sold.
Sub section (6) of section 3 of the Act ordains that every order made under this section by the Central or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be, after it is made.
Section 4 of the Act lays down that an order made under section 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government and may contain directions to any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties.
Section 5 of the Act deals with delegation of powers.
It provides that the Central Government may, by notified order, direct that the power to make orders or issue notifications under section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to a State Government, as may be specified in the direction.
Section 6 of the Act which embodies the non obstante clause lays down that any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment 1077 other than this Act or any instrument having effect by virtue of any enactment other than this Act.
Section 7 of the Act lays down the penalties which any person contravening any order made under section 3 shall entail.
Section 10 of the Act which deals with offences by the companies provides as follows: "10.
(1) If the person contravening an order made under section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.
For the purposes of this section, (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm.
" We may also at this stage advert to the Control Order which was issued by the Central Government vide S.R.O. 1109/ESS.
COMM/ IRON AND STEEL dated May, 8, 1956 in exercise of the powers conferred on it by section 3 of the Act.
Sub clause (1) of clause 15 of this Order authorities the Controller to fix by notification in the Gazette of India the maximum prices at which any iron and steel may 1078 be sold (a) by a producer, (b) by a stockholder including a controlled stockholder and (c) by any person or class of persons.
Sub clause (3) of clause 15 of the Control Order which is material for the purpose of the case provides: "15.
(3) No producer or stockholder or other person shall sell or offer to sell, and no person shall acquire, any iron or steel at a price exceeding the maximum prices fixed under sub clause (1) or (2).
" It was under sub clause (1) of clause 15 of the Control Order that the notification in question was issued.
Though sub section (6) of section 3 of the Act provides that every order made by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made, the important point to be considered in the absence of analogous statutes like the Statutory Instruments Act, 1946 and the Laying of Documents before Parliament (Interpretation) Act, 1948 prescribing the conditions, the period and the legal effect of the laying of order before the Parliament is whether the provision is directory or mandatory.
It is well to remember at the outset that the use of the word `shall ' is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the legislature, which is the determining factor, and that must be done by looking carefully to the whole scope, nature and design of the statute.
Reference in this connection may be made to the decision of this Court in State of U.P. vs Manbodhan Lal Srivastava.
`Reference in this behalf may also be made with advantage to another decision of this Court in The State of Uttar Pradesh & Ors.
vs Babu Ram Upadhya(2) where Subba Rao, J. (as he then was) after quoting with approval the passage occurring at page 516 in Crawford "On the Construction of Statutes" as well as the passage occurring at page 242 in `Craies on Statute Law ', 5th Edition, observed as follows : "The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.
For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from constituting it one way or the other, 1079 the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non compliance with the provisions, the fact that the non compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered." Thus two considerations for regarding a provision as directory are : (1) absence of any provision for the contingency of a particular provision not being complied with or followed and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non compliance with the particular provision.
Now the policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities, the "laying clauses" assume different forms depending on the degree of control which the legislature may like to exercise.
As evident from the observations made at pages 305 to 307 of the 7th Edition of Craies on Statute Law and noticed with approval in Hukam Chand etc.
vs Union of India & Ors.(1) there are three kinds of laying which are generally used by the Legislature.
These three kinds of laying are described and dealt with in Craies on Statute Law (Supra) as under. (i) Laying without further procedure, (ii) Laying subject to negative resolution, (iii) Laying subject to affirmative resolution.
(i) Simple laying.
The most obvious example is in section 10(2) of the 1946 Act.
In earlier days, before the idea of laying in draft had been introduced, there was a provision for laying rules etc., for a period during which time they were not in operation and could be thrown out without ever having come into operation (compare Merchant Shipping Act, 1894, section 417; Inebriates Act 1898, section 21) but this is not used now.
1080 (ii) Negative resolution.
Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a new instrument being made.
The phraseology generally used is "subject to annulment in pursuance of a resolution of either House of Parliament.
" This is by far the commonest form of laying.
It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr 's phrase) to "buy off opposition" by proposing some modification.
(iii) Affirmative resolution.
The phraseology here is normally "no order shall be made unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament.
Normally, no time limit is fixed for obtaining approval none is necessary because the Government will naturally take the earliest opportunity of bringing it up for approval but section 16(3) of the Housing (Financial and Miscellaneous Provisions) Act, 1946 did impose a limit of forty days.
An old form (not much used nowadays) provided for an order to be made but not to become operative until a resolution of both Houses of Parliament had been obtained.
This form was used in section 10(4) of the Road Traffic Act, 1930 (cf.
Road Traffic Act, 1960, s.19 (3) .
The affirmative resolution procedure necessitates a debate in every case.
This means that one object of delegation of legislation (viz. saving the time of Parliament) is to some extent defeated.
The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of the matter, the enabling Act merely outlining the general purpose) or where the order replaces local Acts or provisional orders and, most important of all, where the spending, etc.
of public money is affected.
Sometimes where speedy or secret action is required (e.g. the imposition of import duties), the order is laid with immediate operation but has to be confirmed within a certain period of Import Duties Act, 1958, 1081 s.13(4).
This process of acting first and getting approval after has also been adopted in the Emergency Powers Act, 1920 under which a state of emergency can be proclaimed and regulations made.
The proclamation must be immediately communicated to Parliament and does not have effect for longer than a month: but it can be replaced by another proclamation.
Any regulations made under the proclamation are to be laid before Parliament immediately and do not continue in force after the expiration of seven days from the time when they are so laid unless a resolution is passed by both Houses providing for their continuance." Now at page 317 of the aforesaid Edition of Craies on Statute Law, the questions whether the direction to lay the rules before Parliament is mandatory or merely directory and whether laying is a condition precedent to their operation or may be neglected without prejudice to the effect of the rules are answered by saying that "each case must depend on its own circumstances or the wording of the statute under which the rules are made.
" In the instant case, it would be noticed that sub section(6) of section 3 of the Act merely provides that every order made under section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.
It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament.
It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under section 3 of the Act.
It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide.
It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non observance of or non compliance with the direction as to the laying of the order before both Houses of Parliament.
It would also be noticed that the requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent to the making of the order.
In other words, there is no prohibition to the making of the orders without the approval of both Houses of Parliament.
In these circumstances, we are clearly of the view that the requirement as to laying contained in sub section (6) of section 3 of the Act falls within the first category i.e. "simple laying" and 1082 is directory not mandatory.
We are fortified in this view by a catena of decisions, both English and Indian.
In Bailey vs Williamson(1) whereby section 9 of the Parks Regulations Act, 1872 passed on June 27, 1872 "to protect the royal parks from injury, and to protect the public in the enjoyment of those royal parks and other royal possessions for the purpose of innocent recreation and exercise" it was provided that any rules made in pursuance of the first schedule to the Act shall be forthwith laid before both Houses of Parliament, if Parliament be sitting, or if not, then within three weeks after the beginning of the then next ensuing session of Parliament; and if any such rules shall be disapproved by either House of Parliament within one month of the laying, such rules, or such parts thereof as shall be disapproved shall not be enforced and Rules for Hyde Park were made and published on September 30, 1872 when Parliament was not sitting and in November 18, 1872, the appellant was convicted under section 4 of the Act for that he did unlawfully act in contravention of Regulation 8 contained in the first schedule annexed thereto by delivering a public address not in accordance with the rules of the said Park but contrary to the statute, and it was inter alia contended on his behalf that in the absence of distinct words in the statute stating that the rules would be operative in the interval from the time they were made to the time when Parliament should meet next or if Parliament was sitting then during the month during which Parliament had an opportunity of expressing its opinion upon them, no rule made as supplementing the schedule could be operative so as to render a person liable to be convicted for infraction thereof unless the same had been laid before the Parliament, it was held overruling the contention that the Rules became effective from the time they were made and it could not be the intention of the Legislature that the laying of the rules before Parliament should be made a condition precedent to their acquiring validity and that they should not take effect until they are laid before and approved by Parliament.
If the Legislature had intended the same thing as in section 4, that the rules should not take effect until they had the sanction of the Parliament, it would have expressly said so by employing negative language.
In Starey vs Graham(2) where it was contended that the Register of Patent Agents Rules, 1889 which had been repealed by Rules of 1890 could not be re enacted by mere reference without complying with the provisions of section 101, sub section 4 of 46 and 47 Vict.
c. 57 according to which, a copy of the Rules of 1889 should also have been 1083 laid before both Houses of Parliament in order to make them valid, Channell, J. said : "I somewhat doubt whether the provisions of section 101 are more than directory and whether it is necessary in any particular case where reliance is placed on such rules to prove that in fact its provisions had been complied with." In Jan Mohammad Noor Mohammad Bagban vs The State of Gujarat & Anr.(1) where it was urged by the petitioner that the rules framed by the Provincial Government in 1941 in exercise of the powers conferred on it under section 26(1) of the Bombay Agricultural Produce Markets Act (22 of 1939) had no legal validity as they were not laid before each of the Houses of the Provincial Legislature at the session thereof next following as provided by sub section (5) of section 26 of the Act, this Court rejected the contention and upheld the validity of the said rules.
The following observations made in that case by Shah, J. (as he then was) on behalf of the Constitution Bench are apposite: "The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941.
At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out of World War II.
The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946.
The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 1, 1946 and before the Legislative Council on September 13, 1946.
Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature.
The rules are valid from the date on which they are made under section 26(1).
It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before Houses of Legislature does affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature.
Granting that the provisions of sub section
(5) of section 26 by reason of the failure to place the rules before the Houses of Legislature were 1084 violated, we are of the view that Sub section
(5) of section 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory.
(Emphasis supplied).
The rules have been in operation since the year 1941 and by virtue of section 64 of the Gujarat Act 20 of 1964 they continue to remain in operation.
In D. K. Krishnan vs Secretary, Regional Transport Authority, Chittor(1) where the validity of Rule 13 A of the Madras Motor Vehicles Rules, 1940, made under the empowering the Regional Transport Authority to delegate its functions to the Secretary was challenged on the ground that it was not laid before the Legislature of the Madras State as required by section 133(3) of the Act which provided that the rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to such modification as Parliament or such Legislature may make during the session in which they are so laid, Sabba Rao, J. (as he then was) after an exhaustive review of the case law and the text books on constitutional law by eminent jurists repelled the contention observing as follows : "The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation.
That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament.
Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceases to have force from the date of non compliance with the condition subsequent.
Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non compliance with that condition.
But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non compliance with the rule.
1085 In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory.
Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules.
It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rules shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated.
But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non compliance as they have done in other cases.
This rule (i.e. the one contained in Section 133(3) therefore, is not made either a condition precedent or a condition subsequent to the coming into force of the rules.
It does not provide for any affirmative resolution.
The role continues to be in force till it is modified by the Parliament.
If sub section (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature.
We, therefore, hold that the rule in question is valid.
" In State vs Karna(1) where the very question with which we are concerned in the present case cropped up in connection with the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959, a bench of Rajasthan High Court said as follows: "It is important to note that laying the Order before both the Houses of Parliament is not a condition precedent for bringing into force the Order.
All that sub section (6) provides is that every Order made under sec.
3 of the by the Central Government or by any officer or authority of the Central Government shall be laid before both the Houses of Parliament as soon as after it is made.
It is significant that 1086 the Order is valid and effective from the date it is duly promulgated.
Even the limit or period within which it must be placed before the Parliament has not been specified.
It is, therefore, not possible to hold that sub sec.
(6) of sec.
3 of the is mandatory.
If the legislature intended that in order to provide an adequate safeguard it was necessary to make the said provision mandatory it could have done so in express words.
We are, therefore, of the opinion that the order cannot be considered as invalid merely because the State was not able to put on record proof of the fact that the Order was laid before both the Houses of Parliament." In Mathura Prasad Yadava vs Inspector General, Rly.
Protection Force, Railway Board, New Delhi & Ors.(1) where it was contended that Regulation 14 of the Railway Protection Force Regulations, 1966 made under section 21 of the Railway Protection Force Act (23 of 1957) was invalid as it was not laid before both Houses of Parliament as required by sub section (3) of section 21 of the Act, it was held: "What then is the consequence of failure to lay the regulation ?.
A correct construction of any particular laying clause depends upon its own terms.
If a laying clause defers the coming into force of the rules until they are laid, the rules do not come into force before laying and the requirement of laying is obligatory to make the rule operative.
So the requirement of laying in a laying clause which requires an affirmative procedure will be held to be mandatory for making the rules operative, because, in such cases the rules do not come into force until they are approved, whether with or without modification, by Parliament.
But in case of a laying clause which requires a negative procedure the coming into force of the rules is not deferred and the rules come into force immediately they are made.
The effect of a laying clause of this variety is that the rules continue subject to any modification that Parliament may choose to make when they are laid; but the rules remain operative until they are so modified.
Laying clauses requiring a negative procedure are, therefore, construed as directory.
The matter is put beyond controversy by the decision of the Supreme Court in Jan Mohd. vs State of Gujarat (supra).
Our conclusion, therefore, is that the laying requirement enacted in section 21(3) of the Act is merely directory.
It logically follows that failure to lay Regulation 1087 14 has no effect on its validity and it continues to be effective and operative from the date it was made." Relying on the decision in D. K. Krishnan vs Secretary Regional Transport Authority, Chittoor (supra), Grover, J. speaking for the bench in Krishna Khanna & Anr.
vs State of Punjab(1) said that sub section (6) of section 3 of the was merely of a directory nature and its non compliance did not render the Punjab Coal Control Order, 1955 invalid or void.
Metcalfe & Ors.
vs Cox & Ors.
(2) where the Commissioners (charged with the duty of making provisions for improving the administration of the Scotish Universities) assuming to act under powers of section 16 of the Universities (Scotland) Act, 1889 executed an instrument in writing declaring that they had affiliated and did thereby affiliate the University College of Dundee to and make it form part of the University of St. Andrews which was treated as an ordinance and held to be invalid on the ground that it had not been laid before Parliament is not helpful to the appellants, as the decision in that case turned upon the construction of the language of section 20 of the said Act which provided that all ordinances made by the Commissioners are to be published in the Edinburgh Gazette, laid before Parliament and submitted to Her Majesty, the Queen for approval and no such ordinance shall be effectual until it shall have been so published, laid before Parliament and approved by Her Majesty in Council.
The decision of this Court in Narendra Kumar & Ors.
vs The Union of India & Ors.(3) on which counsel for the appellants have heavily leaned is clearly distinguishable.
In that case, the Non ferrous Metal Control Order, 1958 was held to be invalid essentially on the ground that the principles specified by the Central Government in accordance with clause 4 of the Order were not published either on April 2, 1958 on which the order was published in the Government Gazette or any other date.
It would be noticed that while considering the effect of non publication of the aforesaid principles which formed an integral part of the order by which alone the Central Government could regulate the distribution and supply of the essential commodities, it was only incidentally that a mention was made by the Court to the effect that the principles had not been laid before both Houses of Parliament.
Likewise the decisions of this Court in Express Newspapers (Private) Ltd. & Anr.
vs The Union of India & Ors(4) and in re: The 1088 Kerala Education Bill A.I.R. 1958 S.C. 956) are also not helpful to the appellants.
The point involved in the present case was not directly in issue in those cases and the observations made therein about laying were merely incidental.
From the foregoing discussion, it inevitably follows that the Legislature never intended that non compliance with the requirement of laying as envisaged by sub section (6) of section 3 of the Act should render the order void.
Consequently non laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification.
Accordingly, we answer the aforesaid question in the negative.
In view of this answer, it is not necessary to deal with the other contention raised by the respondent to the effect that the aforesaid notification being of a subsidiary character, it was not necessary to lay it before both Houses of Parliament to make it valid.
In the result, the appeal fails and is dismissed.
N.V.K. Appeal dismissed.

summary/full:
The appellants were prosecuted for the offence of acquiring a controlled commodity at a rate higher than the maximum statutory price fixed for such commodity by the Iron Control Order, 1956.
In the course of proceedings before the trial court the appellants made an application u/s 251A & 288 Cr.
P.C. raising various objections to their prosecution including, that the notification fixing maximum selling prices of various categories of Iron & Steel including the commodity in question was not placed before the Parliament and as such was not valid.
Observing that the laying of the notification before the Parliament could be proved by contemporaneous record and that it was not possible to hold that cognizance of the offence was taken on an invalid report and the order framing the charge was a nullity the trial Court dismissed the application.
In its writ petition filed under articles 226 and 227 of the Constitution, the appellants challenged their prosecution on the ground that the control order and the notification did not have the force of law as they had not been laid before the Houses of Parliament within a reasonable time as required by the .
The High Court dismissed the writ petition.
On the question, whether the notification fixing the maximum selling price of the commodity was void, for not having been laid before both Houses of Parliament.
Dismissing the appeal, the Court ^ HELD: 1.
Non laying of the notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification.
The legislature never intended that non compliance with the requirement of laying as envisaged by section 3(6) of the Act should render the order void.
Though section 3(6) of the Act provides that every order made by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made, the important point to be considered in the absence of a provision prescribing the conditions, the period and the legal effect of the laying of the order before the Parliament is whether the provision is directory or mandatory.
The use of the word 'shall ' is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the legislature, which is the determining factor, and that must be done by looking carefully to the whole scope, nature and design of the statute.
[1078 C E] State of U.P. vs Manbodhan Lal Srivastava, ; , The State of Uttar Pradesh and Ors.
vs Babu Ram Upadhya, ; referred to.
Craies Statute Law 5th Edn.
p. 242.
Two considerations for regarding a provision as directory are: (1) absence of any provision for the contingency of a particular provision not been complied with or followed and (2) serious general inconvenience and prejudice that would result to the general public if the act of the government or an instrumentality is declared invalid for non compliance with the particular provision.[1079 C] 4.
The policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament, being to keep supervision and control over the aforesaid authorities and instrumentalities, the "laying clauses" assume different forms depending on the degree of control which the Legislature may like to exercise.
The three kinds of laying which are generally used by the Legislature are (i) laying without further procedure (ii) laying subject to negative resolution, (iii) laying subject to affirmative resolution.
Each case must depend on its own circumstances or the wording of the statute under which the rules are made.
[1079 D, E; 1081 D] Hukam Chand etc.
vs Union of India and Ors.
referred to.
Craies Statute Law 7th Edn.
305 307.
In the instant case, section 3(6) of the Act merely provides that every order made under section 3 by the Central Government or by any officer or authority of the Central Government, shall be laid before both Houses of Parliament, as soon as may be, after it is made.
It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament.
It also does not provide that it shall be open to the Parliament, to approve or disapprove the order made under section 3 of the Act.
It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide.
It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non observance of or non compliance with the direction as to the laying of 1072 the order before both Houses of Parliament.
The requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent to the making of the order.
In other words, there is no prohibition to the making of the orders without the approval of both Houses of Parliament.
Therefore the requirement as to laying contained in section 3(6) of the Act falls within the first category i.e. "simple laying" and is directory and not mandatory.
[1081 E 1082 A] Jan Mohammed Noor Mohammed Bagban vs The State of Gujarat and Anr., ; ; relied on.
D. K. Krishnan vs Secretary, Regional Transport Authority Chittor, A.I.R. 1956 AP.
129, State vs Karna Mathura Prasad Yadava vs Inspector General, Railway Protection Force, Railway Board, New Delhi and Ors. , Krishna Khanna and Anr.
vs State of Punjab, A.I.R. 1958, Punjab 32; approved.
Narendra Kumar and Ors.
vs The Union of India and Ors., ; ; distinguished.
Express Newspapers (P) Ltd. and Anr.
vs The Union of India and Ors., ; In re.
Kerala Education Bill ; not applicable.
Bailey vs Williamson 1873 LR VIII Q.B. 118, Storey vs Graham referred to.


judgement:
Civil Appeal No. 839 of 1978.
From the Judgment and Order dated 11 3 1978 of the Disciplinary Committee of the Bar Council of India, New Delhi D.C. Appeal No. 14/75.
G. L. Sanghi and A. T. M. Sampath for the Appellant.
Nemo for the Respondent.
The following Judgments were delivered KRISHNA IYER, J.
We agree wholly with our learned brother Sen, J., that the appellant is guilty of gross professional misconduct and deserves condign punishment.
But conventional penalties have their punitive limitations and flaws, viewed from the reformatory angle.
A therapeutic touch, a correctional twist, and a locus penitentiae, may have rehabilitative, impact, if only we may experiment unorthodoxly but within the parameters of the law.
Oriented on this approach and adopting the finding of guilt, we proceed to consider the penalty, assuming the need for innovation and departing from wooden traditionalism.
A middle aged man, advocate by profession, has grossly misconducted himself and deceived a common client.
Going by precedent, the suspension from practice for one year was none too harsh.
Sharp practice by members of noble professions deserves even disbarment.
The wages of sin is death.
1058 Even so, justice has a correctional edge, a socially useful function, especially when the delinquent is too old to be pardoned and too young to be disbarred.
Therefore, a curative, not cruel punishment has to be designed in the social setting of the legal profession.
Law is a noble profession, true; but it is also an elitist profession.
Its ethics, in practice, (not in theory, though) leave much to be desired, if viewed as a profession for the people.
When the constitution under Article 19 enables professional expertise to enjoy a privilege and the confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow.
This desideratum gives the clue to the direction of the penance of a devient geared to correction.
Serve the people free and expiate your sin, is the hint.
Law 's nobility as a profession lasts only so long as the member 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 learned counsel for the appellant.
But, as we have explained at the start, every punishment, however, has a functional duality deterrence and correction.
Punishment for professional misconduct is no exception to this 'social justice ' test.
In the present case, therefore, from the punitive angle, the deterrent component persuades us not to interfere with the suspension from practice reduced 'benignly ' at the appellate level to one year.
From the correctional angle, a gesture from the Court may encourage the appellant to turn a new page.
He is not too old to mend his ways.
He has suffered a litigative ordeal, but more importantly he has a career ahead.
To give him an opportunity to rehabilitate himself by changing his ways, resisting temptations and atoning for the serious delinquency, by a more zealous devotion to people 's causes like legal aid to the poor, may be a step in the correctional direction.
Can these goals be accommodated within the scheme of the statute? Benignancy beyond the bounds of law are not for judges to try.
1059 Speaking frankly, Sec.
35(3) has a mechanistic texture, a set of punitive pigeon holes, but we may note that words grow in content with time and circumstance, that phrases are flexible in semantics, that the printed text is a set of vessels into which the court may pour appropriate judicial meaning.
That statute is sick which is allergic to change in sense which the times demand and the text does not countermand.
That court is superficial which stops with the cognitive and declines the creative function of construction.
So, we take the view that 'quarrying ' more meaning is permissible out of Sec.
35(3) and the appeal provisions, in the brooding background of social justice, sanctified by article 38, and of free legal aid enshrined by article 39A of the Constitution.
"A statute rarely stands alone.
Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean." (The Interpretation and Application of Statutes Read Dickerson p. 103) Back to the Act.
35(3) reads: "The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate General an opportunity of being heard, may make any of the following orders, namely: (a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates.
37 provides an appeal to the Bar Council of India.
It runs: 37(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made (under section 35) (or the Advocate General of the State) may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.
1060 (2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order (including an order varying the punishment awarded by the disciplinary committee of the State Bar Council) thereon as it deems fit.
Section 38 provides a further, final appeal to the Supreme Court in these terms: "Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or Section 37 (or the Attorney General of India or the Advocate General of the State concerned, as the case may be) may, within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order (including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India) thereon as it deems fit." Section 35(3) (c) enables suspensions of the advocate whether conditionally or absolutely, it is left unclear.
Section 37 (2) empowers the Bar Council of India widely to 'pass such order as it deems fit. ' And the Supreme Court, under Sec.
38 enjoys ample and flexible powers to 'pass such order. as it deems fit '.
Wide as the power may be, the order must be germane to the Act and its purposes, and latitude cannot transcend those limits.
Judicial 'Legisputation ' to borrow a telling phrase of J. Cohen, is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision.
In that sense, 'interpretation is inescapably a kind of legislation '.
This is not legislation stricto sensu but application, and is within the court 's province.
We have therefore sought to adapt the punishment of suspension to serve two purposes injury and expiation.
We think the ends of justice will be served best in this case by directing suspension plus a provision for reduction on an undertaking to this court to serve the poor for a year.
Both are orders within this court 's power.
1061 Tamil Nadu has a well run free legal aid programme with which the Governor and Chief Justice of the State are associated.
The State Legal Aid Board, working actively with two retired Judges of the High Court at the head, may use the services of the appellant keeping a close watch on his work and relations with poor clients, if he applies to the Legal Aid Board for giving him such an opportunity, after getting this court 's order as provided below.
Independently of that, as a token of our inclination to allow the appellant to become people minded in his profession, we reduce the suspension from practice upto the 14th of August 1979.
With the next Independence Day we hope the appellant will inaugurate a better career and slough off old bad habits.
If the appellant gives an undertaking that he will work under any official legal aid body in Tamil Nadu and convinces the Chairman of the State Legal Aid Board, Tamil Nadu, to accept his services in any specific place where currently there is an on going project, produces a certificate in this behalf from the Board, and gives an undertaking to this Court that he will do only free legal aid for one year as reasonably directed by the Board (and shall not, during that period, accept any private engagement), his period of suspension shall stand terminated with effect from January 26, 1979.
As a condition precedent to his moving this court he must pay (and produce a receipt) Rs. 2,500/ to the victim of the misconduct.
Atonement cannot be by mere paper pledges but by actual service to the people and reparation for the victim.
That is why we make this departure in the punitive part of our order.
Innovation within the frame work of the law is of the essence of the evolutionary process of juridical development.
From that angle, we think it proper to make a correctional experiment as a super addition to punitive infliction.
Therefore, we make it clear that our action is less a precedent than a portent.
With the modification made above, we dismiss the appeal.
SEN, J.
This appeal under section 38 of the by V. C. Rangadurai is directed against an order of the Disciplinary Committee of the Bar Council of India dated March 11, 1978 upholding the order of the Disciplinary Committee II of the State Bar Council, Madras dated May 4, 1975 holding him guilty of professional misconduct but reducing the period of suspension from practice to one year from six years.
There can be no doubt that the appellant had duped the complainants, T. Deivasenapathy, an old deaf man aged 70 years and his aged wife Smt. D. Kamalammal by not filing the suits on two 1062 promissory notes for Rs. 15,000/ and Rs. 5,000/ both dated August 26, 1969 executed by their land lady Smt.
Parvathi Ammal, who had borrowed Rs. 20,000/ from them, by deposit of title deeds.
Admittedly, though the plaint for recovery of the amount due on the promissory note for Rs. 15,000/ with interest thereon bearing court fee of Rs. 1,519.25 was returned for presentation to the proper court, it was never re presented.
It is also not denied that though the appellant had drafted the plaint for recovery of Rs. 5,000/ with interest no such suit was ever filed.
In spite of this, the appellant made false representations to the complainants Deivasenapathy (P.W. 1), his wife Smt.
Kamalammal (P.W. 3) and the power of attorney agent of the complainants, D. Gopalan (P.W. 2) that the suits had been filed and were pending, gave them the various dates fixed in these two suits, and later on falsely told them that the court had passed decrees on the basis of the two promissory notes.
On the faith of such representation the complainants served a lawyer 's notice dated December 25, 1973 (Ext.
P 3) on the debtor Smt.
Maragathammal, to the effect: "That you are aware of my clients ' filing two suits against you for recovery of Rs. 15,000/ and Rs. 5,000/ with due interest and cost thereon and it is not to state that both the suits were decreed as prayed for by my clients in the court proceedings.
My clients further say that in spite of the fact that the suits had been decreed long ago you have not chosen to pay the amount due under the decrees in question and on the other hand trying to sell the property by falsely representing that the original documents have been lost to the prospective buyers.
My clients further state that you are aware of the fact that my clients are in possession of the original documents relating to the property bearing door No. 41 Shaik Daood Street, Royapeeth, Madras 14, but deliberately made false representation as aforesaid with the mala fide intention to defeat and defraud my clients ' amounts due under the decree.
My clients emphatically state that you cannot sell the property in question without disclosing the amounts due to them. .".
1063 It would thus appear that acting on the representations made by the appellant, the complainants called upon the debtor Smt.
Maragathammal to pay the amount due under the decrees failing which they had instructed their lawyer to bring the property to sale.
Actually no such suits had in fact been filed nor any decrees passed.
It is argued that the finding as to professional misconduct on the part of the appellant reached by the Disciplinary Committee of the Bar Council of India is not based on any legal evidence but proceeds on mere conjectures.
It is pointed out that the ultimate conclusion of the Disciplinary Committee cannot be reconciled with its earlier observation that it was not prepared to attach any credence to the conflicting assertion of Deivasenapathy that he had at first handed over Rs. 855/ on December 2, 1970 for filing the suit on the promissory note for Rs. 5,000/ and then paid Rs. 2,555/ some time in July 1972 for filing the suit on the promissory note for Rs. 15,000/ which is in conflict with the allegation in the lawyer 's notice dated February 21, 1974 (Ext.
R 1) that a sum of Rs. 3,410/ was paid on July 17, 1972 to wards court fees and expenses for the filing of the two suits, or that the various dates marked in the copies of the two plaints, Ext.
P 1 and Ext.
P 2, were indeed given by him.
It is urged that the Disciplinary Committee was largely influenced by the fact that the appellant gave the receipt, Ext.
R 7 to K.S. Lakshmi Kumaran, which was found to be forged.
In view of the discrepancies in the testimony of Deivasenapathy, P.W. 1, Smt.
Kamalammal, P.W. 3 and their agent, D. Gopalan, P.W. 2, it was evident that the Disciplinary Committee mainly based the charge of misconduct on mere suspicion.
Lastly, it is said that the complaint was a false one and was an attempt to pressurize the appellant to persuade his client Smt.
Maragathammal to sell the house to the complainants.
We are afraid, the contentions cannot be accepted.
In denial of the charge the appellant pleaded that though he had drafted the plaint in the suit to be filed on the basis of the promissory note for Rs. 5,000/ , he felt that as the debtor Smt.
Maragathammal had consulted him in another matter, it would be better that the complainants engaged some other counsel and he advised them accordingly.
He suggested the names of two or three lawyers out of whom, the complainants engaged K. section Lakshmi Kumaran.
He denied that the two promissory notes were handed over to him or that he had received any amount by way of court fees or towards his fees.
According to him, K.S.Lakshmi Kumaran was, therefore.
instructed to file the suits.
K. section Lakshmi Kumaran, on the other hand, pleaded that he knew nothing about the suits but had in fact signed the Vakalat as a Junior 1064 counsel, as a matter of courtesy at the behest of the appellant.
He pleaded that he had never met the complainants nor had he been instructed by them to file the suits.
He further pleaded that when the complainants served him with their lawyer 's notice dated February 11, 1974, Ext.
R 11, he went and saw the appellant who told him that he had returned the plaint, which was returned by the court, together with all the documents to the complainant Deivasenapathy as per receipt, Ext.
On February 21, 1974 the complainants served another lawyer 's notice on both the appellant and K. section Lakshmi Kumaran.
The appellant and K. section Lakshmi Kumaran sent their replies to this notice.
The appellant 's reply, Ext.
R 2, was practically his defence in the present proceedings.
K. section Lakshmi Kumaran in his reply, Ext.
R 5, refers to the lawyer 's notice, Ext.
R 11, sent by the complainants earlier and states that when he took the notice to the appellant, he told him that the papers were taken back from him by the complainant Dievasenapathy who had passed on to him a receipt.
The Disciplinary Committee, in its carefully written order, has marshalled the entire evidence in the light of the probabilities and accepted the version of K. section Lakshmi Kumaran to be true.
It observes: "Earlier we referred to the conflict between the two advocates.
We cannot help observing that we feel there is want of candour and frankness on the part of RD.
On a careful consideration of the evidence we see no reason to reject the evidence of L that he merely signed the Vakalat and plaint and when the plaint was returned he took the return and passed on the papers to RD.
" It then concludes stating: "On an overall view of the evidence we hold that L was not directly engaged by the parties and that when the plaint with its annexures was returned, L passed it on to RD.
We also accept L 's evidence that when on receipt of the notice Ext.
R 11 he met RD he was informed that the case papers were taken back by P.W. 1 and that some time afterwards RD gave him the receipt Ext.
R 7. . .
It must be, that when the complainants turned against RD suspecting his bona fide he denied having had anything to do in the matter and threw up his junior colleague in the profession stating that he passed the clients no to L and had nothing more to do with the case.
As the clients had no direct contact with L his statement that he handed over the 1065 plaint on its return to RD looks probable and likely.
We accept it.
When a notice was issued to him in the matter he went to RD and RD gave him the receipt Ext.
The receipt purports to be signed by Deivasenapathy and accepted it for what it was worth.
" In that view, both advocates were found guilty of professional misconduct, but differing in character and different in content.
In dealing with the question, it observes: "As regards RD, the litigants entrusted the briefs to him whatever their motive.
The record does not establish that before entrusting the case to L the complainants were introduced by RD to L and L was accepted by them as counsel in charge of the case.
" It condemned both the advocates for their dereliction of duty, but only reprimanded K. section Lakshmi Kumaran, the junior advocate, because he never knew the complainants and had signed the vakalat at the bidding of the appellant, but took a serious view of the misconduct of the appellant, and castigated his whole conduct in no uncertain terms, by observing: "Finding himself in difficulties RD miserably failed in his duty to his fellow advocate very much junior to him in the profession and who trusted him.
The conduct of a lawyer to his brothers in the profession must be characterised by candour and frankness.
He must keep faith with fellow members of the bar.
While quite properly RD did not accept the engagement himself we are of the view that he has been party to the institution of a suit tended merely to harass the defendants in the suit, with a view to secure some benefit for the other party manifestly unprofessional.
" It went on to observe: "The only casualty is RD 's professional ethics in what he might have thought was a gainful yet good samaritan move.
When the move failed and there was no likelihood of his success, the complainants turned against him securing for their help their power of attorney.
Then fear psychosis appears to have set in, leading RD to totally deny his involvement in the plaint that was filed and let down the junior whose assistance he sought.
We see no other probability 1066 out of the tangled web of exaggerations, downright denials, falsehood and fabrications mingled with some truth.
" May be, the complainants were not actuated from a purely altruistic motive in lodging the complaint but that does not exonerate the appellant of his conduct.
The suggestion that the complaint was false one and constituted an attempt at blackmail is not worthy of acceptance.
The property was actually sold to M. M. Hanifa for Rs. 36,000 by registered sale deed dated August 1, 1974, while the complaint was filed in April 1974.
We do not see how the initiation of the proceedings would have pressurised the appellant to compel his client Smt.
Maragathammal to part with the property for Rs. 20,000/ the price offered by the complainants.
It is no doubt true that at one stage they were negotiating for the purchase of the house of which they were the tenants but the price offered by them was too low.
The Disciplinary Committee of the Bar Council of India summoned the purchaser and he stated that from December 1973, he had been trying to purchase the property.
It is also true that in response to the notice dated August 1, 1974 served by the purchaser asking the complainants to attorn to him, they in their reply dated August 8, 1974 expressed surprise that he should have purchased the property for Rs. 36,000/ when in fact it was not worth more than Rs. 26,000/ It matters little whether the amount of Rs. 3,410/ was paid to the appellant in a lump sum or in two instalments.
Deivasenapathy, P.W. 1 faltered when confronted with the notice Ext.
R 1 and the Disciplinary Committee of the Bar Council of India has adversely commented on this by saying that he is not 'an illiterate rustic ' but is an M.I.S.E., a retired Civil Engineer.
This by itself does not disapprove the payment of the amount in question.
It may be the general power of attorney, D. Gopalan, P.W. 2, made a mistake in instructing the counsel in giving the notice.
As regards the various dates appearing on the copies of the two plaints, Exts.
P 1 and P 2, the complainants could not have got these dates by themselves unless they were given by the appellant.
In an appeal under section 38 of the Act, this Court would not, as a general rule, interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and of the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjecture and unwarranted inferences.
This is not the case here.
Under the scheme of the Act, the disciplinary jurisdiction vests with the State Bar Council and the Bar Council of India.
Disciplinary 1067 proceedings before the State Bar Council are sui ceneris, are neither civil nor criminal in character, and are not subject to the ordinary criminal procedural safeguards.
The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of the public, the courts and the legal profession, into fitness of the subject to continue in the capacity of an advocate.
Findings in disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution.
There should be convincing preponderance of evidence.
That test is clearly fulfilled in the instant case.
When 'a lawyer has been tried by his peers ', in the words of our brother Desai J., there is no reason for this Court to interfere in appeal with the finding in such a domestic enquiry merely because on a reappraisal of the evidence a different view is possible.
In the facts and circumstances of the case, we are satisfied that no other conclusion is possible than the one reached.
There is, therefore, no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India.
It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or part of the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken.
Council 's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer.
It is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts.
Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession.
Lord Brougham, then aged eighty six, said in a speech, in 1864, that the first great quality of an advocate was 'to reckon everything subordinate to the interests of his client '.
What he said in 1864 about 'the paramountcy of the client 's interest '.
is equally true today.
The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith.
It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent.
A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust.
The 1068 appellant completely betrayed the trust reposed in him by the complainants.
It is needless to stress that in a case like this the punishment has to be deterrent.
There was in this case complete lack of candour on the part of the appellant, in that he in a frantic effort to save himself, threw the entire blame on his junior, K. section Lakshmi Kumaran.
The evidence on record clearly shows that it was the appellant who had been engaged by the complainants to file suits on the two promissory notes for recovery of a large sum of Rs. 20,000/ with interest due thereon.
There was also complete lack of probity on the part of the appellant because it appears that he knew the debtor, Smt.
Maragathammal for 7/8 years and had, indeed, been appearing for her in succession certificate proceedings.
If there was any conflict of interest and duty, he should have declined to accept the brief.
What is reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never filed the suits.
The appeal for mercy appears to be wholly misplaced.
It is a breach of integrity and a lack of probity for a lawyer to wrongfully withhold the money of his client.
In a case of such grave professional misconduct, the State Bar Council observes that the appellant deserved the punishment of disbarment, but looking to his young age, only suspended him from practice for a period of six years.
The Disciplinary Committee of the Bar Council of India has already taken a lenient view and reduced the period of suspension from six years to one year, as in its view the complainants did not suffer by the suits not being proceeded with because even if they had obtained decrees for money, they would still have been required to file a regular mortgage suit for the sale of the property charged.
In the facts and circumstances of the case, I am of the view that the punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further interference.
I have had the advantage of reading the judgment of my learned brother Krishna Iyer for the restitution to the appellant of his right to practice upon fulfilment of certain conditions.
I have my own reservations in the matter, that is, whether any such direction should at all be made in the present case.
Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client, or that the wrong was committed or aided by means of false representations, fraud or deceit, as here, the fact that the advocate makes restitution to 1069 or settlement with the client will not prevent disbarment, especially where restitution was not made until after the commencement of the disciplinary proceedings.
It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation, particularly when the repayment is made under pressure.
When there is disbarment or suspension from practice, the lawyer must prove, if he can, after the expiration of a reasonable length of time, that he appreciates the significance of his dereliction, that he has lived a consistent life of probity and integrity, and that he possesses the good character necessary to guarantee uprightness and honour in his professional dealings, and therefore is worthy to be restored.
The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions.
There is nothing of the kind in the present case.
Further, even if this Court has the power to make such a direction.
in terms of section 38, the Court has a duty to act with justice to the profession and the public as well as the appellant seeking reinstatement, and without regard to mere feelings of sympathy for the applicant.
Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement.
I also doubt whether a direction can be made requiring the advocate to undertake free legal aid during the period of his suspension.
This would be a contradiction in terms.
Under section 35(4), when an advocate is suspended from practice under cl.(c) of sub section
(3) thereof, he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.
If the making on such a direction implies the termination of the order of suspension, on the fulfilment of the conditions laid down, I am of the considered view that no restriction on the right of the advocate to appear before any court or authority, which privilege he enjoys under section 30 of the Act, can be imposed.
The taking, of too lenient a view in the facts and circumstances of the case, I feel, would not be conducive to the disciplinary control of the State Bar Councils.
I would, for these reasons, dismiss the appeal and maintain the punishment imposed on the appellant.
In conclusion, I do hope the appellant will fully reciprocate the noble gesture shown to him by the majority, come up to their expectations and turn a new leaf in life.
It should be his constant endeavour to keep the fair name of the great profession to which he belongs unsullied.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was found guilty of gross professional misconduct by the Disciplinary Committee II of the State Bar Council, Tamil Nadu and was therefore, debarred from practice as an Advocate for a period of six years.
In appeal, the Bar Council of India upheld the said findings but reduced the period of suspension to one year.
Dismissing the appeal, the Court Per Iyer, J. (on behalf of Desai, J. and himself) ^ HELD: 1.
Punishment has a functional duality deterrence and correction.
But conventional penalties have their punitive limitations and flaws, viewed from the reformatory angle.
A therapeutic touch, a correctional twist, and a locus penitentiae, may have rehabilitative impact if only Courts may experiment unorthodoxly but within the parameters of the law.
[1057 F G; 1058 E] When the Constitution under article 19 enables professional expertise to enjoy a privilege and the confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow.
[1058 B C] Justice has correctional edge a socially useful function especially when the delinquent is too old to be pardoned and too young to be disbarred.
Therefore, a curative not cruel punishment has to be designed in the social setting of the legal profession.
Punishment for professional misconduct is no exception to this 'social justice ' test.
[1058 A, E] In the present case, therefore, the deterrent component of the punitive imposition persuades non interference with the suspension from practice reduced 'benignly at the appellate level to one year.
From the correctional angle a gesture from the Court may encourage the appellant to turn a new page.
He is 1055 not too old to mend his ways.
He has suffered a litigative ordeal, but more importantly he has a career ahead.
To give him an opportunity to rehabilitate himself by changing his ways, resisting temptations and atoning for the serious delinquency, by a more zealous devotion to people 's cause like legal aid to the poor may be a step in the correctional direction.[1058 E G] 2.
Judicial legislation is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision.
In that sense, interpretation is inescapably a kind of legislation.
Legislation is not legislation stricto sensu but application and is within the Court 's province.
So viewed the punishment of suspension under Sec.
35(3) of the serves two purposes injury and expiation.
The ends of justice will be served best in this case by directing suspension plus a provision for reduction on an undertaking to this Court to serve the poor for a year.
Both are orders within this Court 's power [1060 F H] 3.
Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but words grow in content with time and circumstance, that phrases are flexible in semantics and the printed text is a set of vessels into which the Court may pour appropriate judicial meaning.
That statute is sick which is allergic to change in sense which the times demand and the text does not countermand.
That Court is superficial which stops with the cognitive and declines the creative function of construction. 'Quarrying ' more meaning is permissible out of Sec.
35(3) and the appeal provisions in a brooding background of social justice sanctified by article 38 and of free legal aid enshrined by article 39A of the Constitution.
[1059 A B] Per Sen (J) In an appeal under Sec.
38 of the the Supreme Court would not, as a general rule interfere with the concurrent findings of fact by the Disciplinary Committee, Bar Council of India and the State Bar Council unless the findings is based on no evidence or it proceeds on mere conjecture and unwarranted inferences.
[1066 G H] When 'a lawyer has been tried by his peers ' the Supreme Court cannot interfere in an appeal with the finding in such a domestic enquiry merely because on a re appraisal of the evidence a different view is possible.
In the facts and circumstances of the case, no other conclusion is possible than the conclusion reached.
There is, therefore no ground for interference with the finding of the Disciplinary Committee of the Bar Council of India.
[1067 C D] 2.
Disciplinary proceedings before the State Bar Council are sui generis, are neither civil nor criminal in character and are not subject to the ordinary criminal procedural safeguards.
The purpose of disciplinary proceedings is not punitive but to inquire, for the protection of the public, the Courts and the legal profession into fitness of the subject to continue in the capacity of an advocate.
Findings in disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution.
There should be convincing preponderance of evidence.
That test is clearly fulfilled in the instant case.
[1067 A B] 3.
It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or 1056 part of the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken.
Counsel 's paramount duty is to the client; accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer.
It is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts.
[1067 D E] In the instant case, if there was any conflict of interest and duty the appellant should have declined to accept the brief.
What is reprehensible is that he not only accepted the brief, pocketed the money meant for court fees, and never filed the suits but in a frantic effort to save himself, he threw the entire blame on his junior.
[1068 B C] Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession.
The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith.
It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent.
A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust.
The appellant completely betrayed the trust reposed in him by the complainants in this case.
[1067 F, G H; 1068 A] 4.
The punishment awarded by the Disciplinary Committee of the Bar Council of India does not warrant any further interference.
In a case like this, the punishment has to be deterrent.
Any appeal for mercy is wholly misplaced.
It is a breach of integrity and a lack of probity for a lawyer to wrongfully with hold the money of his client and there was in this case complete lack of candour on the part of the appellant.
[1068 D, F] (per contra) (a) Where it is shown that the advocate acted in bad faith towards his client in detaining or misappropriating funds of the client, or that the wrong was committed or aided by means of false representations, fraud or deceit, the fact that the advocate makes restitution to or settlement with the client will not prevent disbarment especially where restitution was not made until after the commencement of the disciplinary proceedings.
It is only an ameliorating circumstance but does not mitigate the offence involved in the misappropriation particularly when the repayment is made under pressure.
[1068 H, 1069 A] (b) When there is disbarment or suspension from practice, the lawyer must prove, if he can, after the expiration of a reasonable length of time, that he appreciates the significance of his dereliction, that he possesses the good character necessary to guarantee uprightness and honour in his professional dealings, and therefore is worthy to be restored.
The burden is on the applicant to establish that he is entitled to resume the privilege of practising law without restrictions.
There is nothing of the kind in the present case.
Even if the Supreme Court has the power to make such a direction, in terms of section 38, the Court has a duty to act with justice to the profession and the public as well as the appellant seeking reinstatement, and without regard to mere feelings of sympathy for the applicant.
Feelings of sympathy or a feeling that the lawyer has been sufficiently punished are not grounds for reinstatement.
[1068 B D] 1057 (c) A direction requiring the advocate to undertake free legal aid during the period of his suspension would be a contradiction in terms.
Under section 35(4), when an advocate is suspended from practice under cl.
(c) of sub section
(3) thereof, he shall, during the period of suspension be debarred from practising in any court or before any authority or person in India.
If the making of such a direction implies the termination of the order of suspension, on the fulfilment of the conditions laid down, no restriction on the right of the advocate to appear before any Court or authority, which privilege he enjoys under section 30 of the Act, can be imposed.[1069 D F] The Court directed: (i) the appellant to pay a sum of Rs. 2,500/ to the victim of the misconduct and produce a receipt (ii) give an undertaking as directed viz., accepting the suspension from practice upto 14th August 1979 and willingness to undertake work under any legal aid body in Tamil Nadu and convince the Chairman of that Board to accept his services in any specific place where currently there is an on going project, produce a certificate in this behalf from the Board and (iii) agree to do only free legal and for one year as reasonably directed by the Board (and shall not during that period accept any private engagement) so that the period of suspension shall stand terminated with effect from January 26, 1979.
[1061 A D]