Lawyer not liable for 'professional misconduct' unless 'gross negligence': Supreme Court

Holding that 'human errors' are possible even by lawyers, the Supreme Court in a recent decision has declared that a lawyer cannot be hauled up for professional misconduct only on account of negligence unless it is shown that the error was a 'gross negligence' in his actions. While acknowleding that "nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate", the Supreme Court declared the legal position on the yard-stick to be followed for adjudging the actions of a lawyer and whether they were beyond the permissible boundaries. 

In its decision entitled T.A. Kathiru Kunju v. Jacob Mathai - Civil Appeal No. 3860 of 2007, decision dated 16.02.2017 the Supreme Court was dealing with the correctness of the action taken by the Bar Council (the regulatory body of lawyers in India) in holding a lawyer"guilty of gross negligence in discharge of his professional service to the client and accordingly imposed the punishment of reprimand" and a fine. The facts leading to this punishment were that the lawyer did not proceed with the suggested course of action required by the client in prosecuting a debtor for default. Apparently the lawyer also lost a crucial piece of evidence given to his custody by his client. The lawyer challenged the guilty verdict of the Bar Council before the Supreme Court which accepted the challenge. 

The Supreme Court gave the following reasons in support of its ruling;

"10. On a plain reading of the aforesaid provision, it is clear as crystal what punishment is to be imposed in case of misconduct. In the case at hand, as we find, that a conclusion has been arrived at by the Disciplinary Authority that it is a case of gross negligence at the hands of the appellant. As urged by Mr. Parikh, it is only required to be seen whether it is a mere negligence or gross negligence.  

11. The Constitution Bench, in the matter of Mr. 'P' an Advocate, (supra) has ruled that mere negligence or error of judgment on the part of an advocate would not amount to professional misconduct. It has been further held therein that error of judgment cannot be completely eliminated in all human affairs and mere negligence may not necessarily show that the advocate who is guilty of it can be charged with misconduct. The Constitution Bench, as is demonstrable, has drawn a distinction between 'negligence' and the 'gross negligence'. We think it appropriate to reproduce the said passage. It is as follows:- 

“But different considerations arise where the negligence of the Advocate is gross. It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression "moral turpitude or delinquency" is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A willful and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate. In dealing with matters of professional propriety, we cannot ignore the fact that the profession of law is an honourable profession and it occupies a place of pride in the liberal professions of the country. Any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an Advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. The Advocates-on-record like the other members of the Bar Advocates are Officers of the Court and the purity of the administration of justice depends as much on the integrity of the Judges as on the honesty of the Bar. That is why in dealing with the question as to whether an Advocate has rendered himself unfit to belong to the brotherhood at the Bar, the expression "moral turpitude or delinquency" is not to be construed in an unduly narrow and restricted sense.”  

12. On a careful reading of the aforesaid passage, it is quite clear that concept of “gross negligence” cannot be construed in a narrow or a restricted sense. It is because honesty of an Advocate is extremely significant. The conduct of an Advocate has to be worthy so that he can be called as a member of the noble fraternity of lawyers. It is his obligation to look after the interest of the litigant when is entrusted with the responsible task in trust. An Advocate has to bear in mind that the profession of law is a noble one. In this regard, we may fruitfully refer to what has been stated in Sanjiv Datta Dy. Secy. Ministry of Information & Broadcasting, In re.:- 

“The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.” 

13. Slightly recently in Dhanraj Singh Choudhary v. National Vishwakarma, it has been observed:- 

“The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate’s attitude towards and dealings with his client have to be scrupulously honest and fair.” 

14. There can be no doubt that nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate. Keeping that primary principle in view, his conduct has to be weighed. There the approach of appreciating the evidence brought on record and the yardstick to be applied, become quite relevant. A three-Judge Bench in P.D Khandekar (supra) while dealing with the scope of an appeal preferred under Section 38 of the Act, ruled that in an appeal under Section 38, this Court in a general rule, cannot interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. The Court has further laid down that finding in such 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; and there should be convincing preponderance of evidence. We must immediately note with profit that the said principle is absolutely significant. The Court has stressed upon the rule to be applied for acceptance or treating the finding defensible by the Disciplinary Committee of Bar Council. In this regard it is fruitful to reproduce the following passage from the said authority:- 

“There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said that: 

"Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.', The decision was followed by the Calcutta High Court in re An Advocate, and by the Allahabad High Court in the matter of An Advocate of Agra and by this court in the matter of P. An Advocate. 

The decision was followed by the Calcutta High Court In re An Advocate [AIR 1955 CAL 484], and by the Allahabad High Court In the matter of An Advocate of Agra [AIR 1940 All 289] and by this Court In the matter of P. An Advocate [AIR 1934 Rang 33]” 

... 

17. On a studied scrutiny of the evidence in this context, the factual score, the act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The tenor of the impugned order, as we notice, puts the blame on the appellant on the foundation that he had not received the acknowledgment. He has offered an explanation that he had given the cheque to the police. There has been no delineation in that regard. That apart, there is no clear cut analysis on deliberation on gross negligence by the advocate. The Disciplinary Committee found the appellant guilty of gross-negligence as he had failed to get the acknowledgment from the complainant-respondent. The examples given by the Constitution Bench are of different nature. In the obtaining factual matrix, therefore, we are unable to accept the conclusion arrived at by the Disciplinary Authority of the Bar Council of India that the negligence is gross. Hence we are impelled not to accept the submission advanced by learned counsel for the respondent. 

18. Thus analysed, we are disposed to allow the appeal and accordingly, we so direct and the order passed by the Disciplinary Committee of the Bar Council of India is set aside. ..." 

Why reasons are essential for a decision: Supreme Court explains

We have written often on this blog about decisions and concepts which require a decision making authority (either in executive and administrative capacity or a judicial one) to provide reasons for the decision to be given. Like we earlier wrote about Reasoning being essential in every decision, and that it forms a part of the Guidelines for writing judgments. Despite having stated such, we cannot resist writing about a recent decision [M/s. Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan] of the Supreme Court which serves as an essay on the requirement to provide reasons in every decision. 

The Bench extensively examined the growth of law on this proposition and the earlier decision, both from the English Courts as well of the Supreme Court itself, in such detail that even the blog template refused to accommodate all of the text. Thus we have no option but to run only the principles summarized in the decision while without doubt recommending our readers to have a look at the decision (relevant at para 15-51).

The decision succinctly summarizes the  principles in the following terms (paragraph 55); 

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. 

b. A quasi-judicial authority must record reasons in support of its conclusions.

c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

g. Reasons facilitate the process of judicial review by superior Courts.

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. 

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial accountability and transparency. 

k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. 

l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny.  (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.

o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.

Have a look at the decision.

Eternal Law: The Underpinnings of Dharma and Karma in the Justice System

The Western concept of jurisprudential analysis of law and society revolves about the traditional concept of right versus duty analysis and expounded by Hohfeld. The Indian social structure and the historic documents, however, are not deficient in any way in this arena and in fact provide a robust explanation to the legal concepts. The eternal bounds of 'Dharma' as governing the actions of both the King and the subjects have governing the Indian social ethos for long and thus influences the origin of laws. In this context we find an interesting paper on SSRN entitled Eternal Law: The Underpinnings of Dharma and Karma in the Justice System written by S. Persaud. 

The paper discusses the origins of criminal law in the context of the Dharma and Karma principles to analyse the development of law. The abstract reads as under;

This article discusses a philosophical view of criminal law from the perspective of two Eastern concepts, Dharma and Karma, instead of the traditional notions of utilitarianism and retributivism; analyzing the Hindu philosophy of Eternal Law to show the underpinnings of Dharma and Karma in the justice system. Although many have adapted these concepts as expressions of spirituality, they are not religious or spiritual canons but conceptualizations of interpreting and comprehending the world around us while enabling us to embrace every expression of human existence. The article further seeks to examine these universal principles as inherent principles within our social system. The hope is to bring about a better understanding of their influences and impact on our justice system. In to elucidate this, the article also focuses a discussion on the utilization of these concepts by Mohandas Karamchand Gandhi and Martin Luther King, Jr. in their struggles for justice and equality in two distinct social realities. 

Action contrary to Court order invalid: Supreme Court

Holding that action taken contrary to an order passed by a court remains a nullity, the Supreme Court in a recent decision declared that the action of the State Government of allotting the law despite there being an interim order against such a move was not enforceable. We had covered a similar issue where we had pointed out the settled law that one much approach the court with clean hands. As a step further, the Supreme Court in this decision declared that even the actions which have been undertaken remain to be unenforceable in law if contrary to a court order.

The Bench explained the law in the following terms;

23. In Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386, this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity. 

24. In Surjit Singh Vs. Harbans Singh, AIR 1996 SC 135, this Court while dealing with the similar issue held as under: 

“In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.”

25. In All Bengal Excise Licensees Association Vs. Raghabendra Singh & Ors, AIR 2007 SC 1386, this court held as under:

“A party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof..... the wrong perpetrated by the respondents in utter disregard of the order of the High Court should not be permitted to hold good.”

26. In Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. & Anr. AIR 1996 SC 2005, this court after making reference to many of the earlier judgments held:

“On principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.”

27. In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund, AIR 2008 SC 901, this Court while dealing with the similar issues held that even a Court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of coming to the conclusion that a breach to an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated.

28. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity.

Have a look at the decision.

Audi Alteram Partem: Natural Justice revisited

'Audi Alteram Partem', the Latin expression well ingrained in the common law legal system translated in English means 'no one should be condemned unheard. It is one of the three basic principles of natural justice, it has come a long way since it first found favour before the English Courts since the inception of the common law system. 

The Supreme Court in Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 explained the concept in the following terms;

6. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

7. The expressions “natural justice” and “legal justice” do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants’ defence. 

8. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vocate, interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], the principle was thus stated: 

“Even God did not pass a sentence upon Adam, before he was called upon to make his defence. “Adam” says God, “where art thou? hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat”.

9. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

10. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

11. What is meant by the term ‘principles of natural justice’ is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt ‘to force it into any procusteam bed’ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give ‘a full and fair opportunity’ to every party of being heard.

12. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C. observed as follows: 

“Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari”.

13. Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view”. To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows:

“No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice”.

14. Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done’. 

15. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

16. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as ‘universal justice’. In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase ‘the requirements of substantial justice’, while in Arthur John Specman v. Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase ‘the substantial requirement of justice’. In Vionet v. Barrett (1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as ‘the natural sense of what is right and wrong’. While, however, deciding Hookings v. Smethwick Local Board of Health (1890 (24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet’s case (supra) chose to define natural justice as ‘fundamental justice’. In Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with ‘fair-play in action’ a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967 (2) B 617, 530), Lord Parker, CJ, preferred to describe natural justice as ‘a duty to act fairly’. In Fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as ‘a fair crack of the whip’ while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase ‘common fairness’.

17. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debet esse judex in propria causa sua’ as stated in (1605) 12 Co.Rep.114 that is, ‘no man shall be a judge in his own cause’. Coke used the form ‘aliquis non debet esse judex in propria causa quia non potest esse judex at pars’ (Co.Litt. 1418), that is, ‘no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party’. The form ‘nemo potest esse simul actor et judex’, that is, ‘no one can be at once suitor and judge’ is also at times used. The second rule is ‘audi alteram partem’, that is, ‘hear the other side’. At times and particularly in continental countries, the form ‘audietur at altera pars’ is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit’ that is, ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ (See Bosewell’s case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done’.

Have a look at the decision.

No misconduct when following call of duty: High Court

Setting aside the punishment awarded on the Departmental Inquiry to a CISF personnel, a Division Bench of the Delhi High Court in a recent decision criticized the force and its officers in having adopted the course of action for punishing the petitioner who was only performing his duty. The aggrieved personnel had been punished for having taken his force members on his own upon receiving information that other members of the force were subject of police atrocities when the petitioner was not able to take instructions due to the absence of his senior officers.

The Petitioner S.K. Sur, who was a Sub-Inspector with CISF during the time of the incident in 1984, supervising fatigue duty for the purposes of maintenance and cleaning of the headquarters lines when he was informed that some CISF personnel were assaulted by the Police during a game. The Petitioner rushed to take instructions for proper action from the seniors but could not get through despite repeated attempts and in the circumstance rushed to the stadium to take stock of the situation. For this conduct he was charged with misconduct for having acted in a manner unbecoming of an officer and subsequently punished. This was challenged before the High Court.

The High Court, holding that a writ petition was maintainable in such circumstances, examined the facts or record to hold that there was no misconduct on the part of the petitioner for having been punished. While the High Court also passed strictures against the CISF for having initiated against and taken action of punishing the petitioner without even discharging the basic requirements of the principles of natural justice, the High Court in this backdrop explained the concept of "misconduct" in the following terms;

47. The petitioner's further submission is that even if such actions of the petitioner in visiting the stadium with about four CISF personnel was to be held against him, the same at best was overzeal in performance of duty. It is submitted that the petitioner's actions flowed from his sense of devotion to duty and responsibility and that, at their worst, it could only be contended that there was an error in judgment in proceeding in the manner in which he did. The petitioner's contention is that such actions could never be construed as misconduct inviting disciplinary action against the petitioner. 

48. The petitioner has, therefore, raised a basic question as to what is the nature of conduct which could be construed as misconduct inviting disciplinary proceedings and penalty against him. The expression `Misconduct' is not defined under the CISF Act, 1969. It is well established that in case a term has not been statutorily defined, guidance from the meaning obtainable in ordinary and common parlance may be taken and the word has to be understood in its ordinary dictionary meaning. Since it is difficult to give an exhaustive definition of what amounts to misconduct, the ordinary meaning of the expression “misconduct” in various dictionaries may be considered. 

49. Legal dictionaries have also defined 'misconduct'. In P. Ramanatha Aiyar's The Law Lexicon (Second Edition 1997) has extensively revised and enlarged at page 1238 the meaning of `misconduct' as follows:-

“The term “misconduct” implies a wrongful intention, and not a mere error of judgment, Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official by which the rights of a party have been affected.

The word “misconduct” is a sufficiently wide expression and it covers conduct which in any way renders a man unfit for his office or is likely to tamper with or embarrass the administration. In this sense it is grossly improper or unbecoming conduct in public life and may also become misconduct and may render an officer liable to disciplinary action therefor.” 

50. In Black's Law Dictionary, Sixth Edition, “Misconduct” is defined at page 999 as follows :-

“A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.” 

“Misconduct in office” has been defined as:

“Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.”

51. In the Law Lexicon by Shri P.M. Bakshi, Volume 2, (Second edition 2005) at page number 1693, the following definition is to be found:-

“MISCONDUCT “Misconduct” as described in Batt's Law of Master and Servant (4th Edition, p. 63) “comprises positive acts and not mere neglect or failure”.

As per the definition of the word in Ballentine's Law Dictionary (1948 Edition) is: “As transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand clearly it is a violation of definite law; a forbidden act. It differs from carelessness”.

52. In the Legal Glossary by the Government of India, 2001 edition at page 212, “misconduct” has been defined as follows:- 

“misconduct : malfeasance; improper conduct”

53. The New Lexicon Webster's Dictionary of the English language at page 638, 1988 edition has defined the term “misconduct” as follows:-

“mis-con-duct - bad management, behavior improper according to some code, to mismanage, to conduct (oneself) improperly”

54. The Words and Phrases Dictionary Permanent Edition, Volume 27, 2003 at page 329 has defined the term “misconduct in office” as follows:-

“Misconduct in office” includes such acts as amount to a breach of the good faith and of the right action that are tacitly required of all officers.”

At page 331, it defines the expression “misconduct in office” as follows:-

“The phrase “misconduct in office” includes any willful malfeasance, misfeasance, or nonfeasance in office, and means any act or omission in breach of duty of public concern by person who has accepted public office provided his act is willful and corrupt and is not judicial. “Malfeasance” is the performance of that which an officer has no authority to do and is positively wrong or unlawful. “Misfeasance” by an officer is the performance in a wrongful manner of that which the law authorizes or requires him to do and “nonfeasance” by an officer is the substantial failure to perform duty.” 

At page 332, it defines the expression “official misconduct” or “misconduct in office” as follows:-

“Official misconduct” or “misconduct in office” includes doing unlawful act “(malfeasance),” doing lawful act in unlawful manner “(Misfeasance),” and failing to perform act required by law or duties of office “(nonfeasance),” but does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.”

This dictionary has also defined “misconduct or malfeasance in public office” at page 334 in the following terms:-

“MISCONDUCT OR MALFEASANCE IN PUBLIC OFFICE - “Misconduct or malfeasance in public office” in its penal sense is not merely error in judgment or departure from sound discretion, but the act, omission, or neglect must be willful, corrupt, and amount to a breach of duty legally required by one who has accepted public office.”

55. The judgment of the Supreme Court reported at AIR 1979 SC 1022 titled Union of India & Ors. vs. J. Ahmed may also be usefully referred to in this behalf, the relevant extract whereof reads as follows :-

“9. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. ............Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty, .....An act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. .....It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.

xxx xxx 

11. ......If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster 17 QB 536. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) [1959] 1 WLR 698]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur 61 Bom. L.R. 1596 and Satubha K. Vaghela v. Moosa Raza 10 G.L.R. 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under :

Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.

12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehavior involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.

13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation.” 

56. This very issue has been the subject matter of consideration in other judicial precedents as well. In (1992) 4 SCC 54 State of Punjab & Anrs. Vs. Ram Singh, ex constable. The Supreme Court relied upon some of the aforenoticed definitions and held as follows:-

“6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.”

57. This court had occasion to construe the meaning of the expression “misconduct” in a pronouncement dated 27th August, 2002 in WP (C) No.5552/2002 Tara Chand Vs. Union of India. The Division Bench of this court placed reliance on a pronouncement of the Calcutta High Court reported at 1994 (2) Calcutta Law Journal 456 Probodh Kumar Bhowmick Vs. University of Calcutta & Ors. and held as follows:-

“14 In Probodh Kumar Bhowmick vs. University of Calcutta & Ors., 1994 (2) Cal. LJ 456, it was observed: 

14. `Misconduct', inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behaviour; intentional wrong doing on deliberate violation of a rule of standard or behaviour":

“Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct.”

15. Even in industrial laws, acts of misconduct specified in standing order framed under Industrial Employment (Standing Order) Act, 1946 is not treated to be exhaustive. Various misconducts specified in Clause 14(3) of Model Standing Order are merely illustrative. 

16. In (5) Mahendra Singh Dhantwal v. Hindustan Motors Ltd. reported in (1976) II LLJ 259 (264) SC, a three Judge Bench of the Supreme Court observed "standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing order, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action". 

17. Even in the absence of rules specifying misconduct, it would be open to the employee to consider reasonably what conduct can be properly treated as misconduct. See (6) W.M. Agnani v. Badri Das reported in (1963) 1 LLJ page 684 at 690.”

58. It, therefore, needs no further elaboration that to constitute misconduct there must be an element of that which is forbidden and impropriety of conduct in the actions alleged against a person; His actions must be wilful and a transgression of established and definite rule of action or code of conduct. An unintentional error of judgment arising out of a misplaced zeal in performance of duty would certainly not fall within the definition of misconduct.

59. The petitioner has pointed out that on 28th September, 1985, no person of the rank of inspector or above was available at the battalion headquarters for the reason that they were all in a meeting at the DIG office. As per the chargesheet, the petitioner was performing duties as the Headquarters Company Commandant. The inquiry report dated 24th of June, 1986 has found that on 28th September, 1995, the petitioner was the Company Commander, Headquarters Company and that he was supervising the fatigue duties of few personnel. These statements clearly suggest that the petitioner was in fact in the position of authority on 28th September, 1986 and was involved in supervising the personnel when information of the unprovoked and unforeseen happening in the stadium was received by him. There is no dispute at all to this position.

xxx

72. The petitioner's sense of integrity and devotion is manifested in his conduct. Despite the turmoil and agitation which the condition of injured Constables Majhi & Das would have incited at the CISF Headquarters amongst the other personnel, the petitioner displayed strong leadership qualities in not only keeping this situation under control but in simultaneously attempting to apprise and take instructions from his superiors. The petitioner's every initiative and move was controlled, measured and sensible. The actions were certainly such which any reasonable or prudent person would undertake and clearly within the functions and duties enjoined on every Government servant under Rule 3 of the Central Civil Service (Conduct) Rules, 1964. 

73. In this background, it cannot be held that the actions of the petitioner tantamounted to misconduct, let alone such misconduct as would invite suspension, disciplinary proceedings and the stringent penalty of dismissal from service which has been imposed upon him. As a result, it has to be held that the entire action and orders against the petitioner were misconceived, in violation of principles of natural justice and illegal.

Have a look at the decision.

Nalini not to be released prematurely: High Court

Rejecting the petition filed by Nalini praying for early release from prison, the Madras High Court did not allow the convict in the case of assassination of former Prime Minister of India, Sri Rajiv Gandhi to be released. Noting that she had already received the benefit of commutation of sentence from the Governor of Tamil Nadu where the death punishment awarded to her was reduced to one of life imprisonment, the High Court held that the case of Nalini was not fit for being considered for remission of sentence given the facts and circumstances relating to the offence committed by her.

In making this decision, the High Court made some interesting observations, as under;

• In the case of heinous, brutal and barbaric assassination of former Prime Minister of India, wherein the present appellant is a convict prisoner, undergoing life sentence, the SIT has investigated a crime that was cunning in conception, meticulous in planning and ruthless in execution and the SIT has carried out a tremendous job with its meticulous investigation which was able to unearth the mystery from some slender clues. When the offence proved against the appellant is that of a higher magnitude rather sending shocking waves throughout the world as by such inhuman and barbaric act, the appellant and the other co-accused have taken away the life of a former Prime Minister of India, resulting in the specialised investigating team to take over the case, this argument advanced on the part of the appellant needs only to be rejected. [para 30]

• Coming to the other ground urged by the appellant that the classification introduced by the impugned G.O., among the life convicts viz. those life convicts falling under Section 435 Criminal Procedure Code and those who do not fall under the said Section, by the Governor, while exercising powers under Article 161 of the Constitution is arbitrary, discriminatory, unfair and unreasonable and violative of Articles 14 and 21 of the Constitution, as has already been observed by us supra, the appellant is a convict prisoner in a case of doing away the life of a former Prime Minister of India, in a barbaric manner of plotting human bombs and taking away the life of many others. It must be borne in mind that branding the case as one falling under the category of 'rarest of rare', originally death sentence was awarded to the appellant, which was later on commuted to one of life imprisonment, which seems to be purely on humanitarian grounds. Such commutation of death sentence to one of life imprisonment does not in any manner reduce the gravity of the offence proved to be involved by the appellant. That being so, in terms of the judgment of the Honourable Apex Court in Sadu Singh's case (1984 SCC (Cri) 241), she constitute a distinct class and cannot claim equality with those sentenced to life imprisonment' and the gravity of an offence and the quantum of sentence prescribed in the Code could be a reasonable basis for a valid classification if the object of such classification is to grant or not to grant remission. If all the prisoners, irrespective of the gravity of the offences for which they are convicted are classified and considered similarly, it will have serious repercussions on the safety and security of the society besides shaking the foundation of the entire criminal justice system of awarding appropriate quantum of sentence depending on the nature of the offence proved to be committed by the accused. Therefore, the classification incorporated by the Government in the impugned G.O. among the life convicts falling within and outside the ambit of Section 435 Cr.P.C., is a reasonable classification, which the Government is empowered to bring in to uphold the majesty and to meet the real ends of justice. Therefore, this classification cannot at all be branded as arbitrary or discriminatory or unfair or even unreasonable, so as to say and hold that it violates Articles 14 and 21 of the Constitution. [para 31]

Have a look at the decision.

One much approach the Court with clean hands: Supreme Court

A well known maxim, having its origin in equity courts, comes to test the quality of litigants each time they pray for a particular relief in common law courts. The notion that one must approach the court with clean hands has been so indoctrinated in the common law system that all courts, right from the trial court upto the Supreme Court, are loath to entertain a vexatious claim before it. The latest pointer to this regard is a recent decision of the Supreme Court which reaffirms this time tested principle of civil litigation. 

In a recently pronounced decision, the Supreme Court affirmed the principle in the following terms;

14. It is quite intriguing and surprising that the lease agreement was not brought to the notice of the Additional Commissioner and the learned Single Judge of the High Court and neither of them was apprised of the fact that the appellant had taken 27.95 acres land on lease from the Government by unequivocally conceding that it had purchased excess land in violation of Section 154(1) of the Act and the same vested in the State Government. In the list of dates and the memo of special leave petition filed in this Court also there is no mention of lease agreement dated 15.10.1994. This shows that the appellant has not approached the Court with clean hands. The withholding of the lease agreement from the Additional Commissioner, the High Court and this Court appears to be a part of the strategy adopted by the appellant to keep the quasi-judicial and judicial forums including this Court in dark about the nature of its possession over the excess land and make them believe that it has been subjected to unfair treatment. If the factum of execution of lease agreement and its contents were disclosed to the Additional Commissioner, he would have definitely incorporated the same in order dated 30.5.2001. In that event, the High Court or for that reason this Court would have non suited the appellant at the threshold. However, by concealing a material fact, the appellant succeeded in persuading the High Court and this Court to entertain adventurous litigation instituted by it and pass interim orders. If either of the courts had been apprised of the fact that by virtue of lease deed dated 15.10.1994, the appellant has succeeded in securing temporary legitimacy for its possession over excess land, then there would have been no occasion for the High Court or this Court to entertain the writ petition or the special leave petition.

15. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person. In one of the earliest decisions on the subject i.e., - R. v. Kensington Income Tax Commissioner (1917) 1 KB 486, Viscount Reading, Chief Justice of the Divisional Court observed: 

“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”

16. The above extracted observations were approved by the Court of Appeal in the following words: “It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction: and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. If an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted.” His Lordship rightly pronounced: “The Court, for its own protection, is entitled to say: We refuse this writ… without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us.” Warrington, L.J. was also of the same opinion. In a concurring judgment His Lordship observed: “It is perfectly well settled that a person who makes an ex parte application to the Court – that is to say, in absence of the person who will be affected by that which the Court is asked to do – is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him.”

17. This Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance – State of Haryana v. Karnal Distillery Co. Ltd. (1977) 2 SCC 431, Vijay Kumar Kathuria v. State of Haryana (1983) 3 SCC 333, Welcome Hotel and others v. State of Andhra Pradesh and others etc. (1983) 4 SCC 575, G. Narayanaswamy Reddy (dead) by LRs. and another v. Government of Karnataka and another (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by LRs. and others (1994) 1 SCC 1, Agricultural and Processed Food Products v. Oswal Agro Furane and others (1996) 4 SCC 297, Union of India and others v. Muneesh Suneja (2001) 3 SCC 92, Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12 SCC 481, G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141 and C.A. No. 5239/2002 – Dalip Singh v. State of U.P. and others, decided on 3.12.2009.

18. In Hari Narain v. Badri Das AIR 1963 S.C. 1558, this Court revoked the leave granted to the appellant by making following observations: “It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked.”

19. In Dalip Singh’s case, the appellant’s grievance was that before finalizing the case under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the prescribed authority did not give notice to the tenure holder Shri Praveen Singh (predecessor of the appellant). On a scrutiny of the records, this Court found that the prescribed authority had issued notice to Shri Praveen Singh, which was duly served upon him and held that the appellant is not entitled to relief because he did not approach the High Court with clean hands inasmuch as he made a misleading statement in the writ petition giving an impression that the tenure holder did not know of the proceedings initiated by the prescribed authority. The preface and para 21 of that judgment read as under:  

“For many centuries, Indian society cherished two basic values of life i.e., `Satya’ (truth) and `Ahimsa’ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

21. From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant’s prayer for setting aside the orders passed by the Prescribed Authority and the Appellate Authority.”

Have a look at the decision.

Post-Script Rejoinder

After having written this post, we came across a later decision of the Supreme Court in Ramjas Foundation v. Union of India wherein similar ideals have been discussed. Towards maintaining continuity and for the benefit of our readers, we are updating this post with the later decision. Therein the Supreme Court has inter alia observed as under;

14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. In Dalglish v. Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B. observed:

“It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward.

In Castelli v. Cook (1849) 7 Hare, 89, 94 Wigram V.C. stated the rule in the following words:

“A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.”

In Republic of Peru v. Dreyfus Brothers & Company 55 L.T. 802, 803, Kay J. held as under:

“I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith in the Court when ex parte applications are made.”

The same rule was restated by Scrutton L., J in R. v. Kensington Income Tax Commissioner (1917) 1 K.B. 486. The facts of that case were that in April, 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicant for the year ending April 5, 1913, in respect of profits arising from foreign possessions. On May 16, 1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicant was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending April 5, 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother’s house, 213, King’s Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending April 5, 1914, for temporary purposes on visits, and spent part of the time at 213, King’s Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply, it appeared that in February, 1909, a leasehold house, 213, King’s Road, Chelsea, had been taken in the name of the applicant’s brother. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant. The Divisional Court without dealing with the merits of the case discharged the rule on the ground that the applicant had suppressed or misrepresented the facts material to her application. The Divisional Court observed that the Court, for its own protection is entitled to say “we refuse this writ of prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us”. On appeal, Lord Cozens-Hardy M.R. and Warrington L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed that the appeal should be dismissed observed: 

“and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.”

15. The above noted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands – Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. SAIL (2008) 12 SCC 481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141 and Dalip Singh v. State of U.P. (2010) 2 SCC 114. In the last mentioned judgment, the Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed:

“For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

16. In our view, the appellants are not entitled to any relief because despite strong indictment by this Court in Ramjas Foundation v. Union of India, they deliberately refrained from mentioning details of the cases instituted by them in respect of the land situated at Sadhora Khurd and rejection of their claim for exemption under clause (d) of notification dated 13.11.1959 by the High Court and this Court.